Kelley Drye’s Environmental Law Practice Group specializes in providing comprehensive solutions for complex problems to facilitate effective business strategies. From Capitol Hill, at the EPA, and to the boardroom or the factory floor, our team knows how to shape, interpret, and implement environmental laws and regulations to serve our clients’ interests.

For more than 30 years, our firm has helped our clients achieve their environmental policy and compliance goals and business strategies. Our team of attorneys, policy experts, and engineers work together to give you the practical insight you need to make crucial, smart decisions for your business. We have the credibility and experience to successfully advocate your interests at the agencies or in the courtroom.

Before tackling any issue, we do our homework by learning in detail the operations and regulated activities of each industry or company. As a result, the arguments we make—whether legal or policy—are technically sound and well supported. Our ability to “talk the talk” with the U.S. Environmental Protection Agency and state agencies accounts for a large part of our success in negotiating meaningful changes at the rule proposal stage and, when necessary, with the courts in litigation. Our experience in writing and implementing the rules also helps our clients account for environmental issues in business transactions.

We can help you:

• Shape the laws and regulations that affect your business or industry
• Collaborate with key decision makers at the state and national levels to coordinate and influence the debate on environmental legislation and regulation
• Create opportunities to garner favorable interpretations when there is regulatory discretion
• Challenge laws and regulations that present unfair and/or untenable obstacles for your business or industry
• Design sound environmental compliance programs that enhance your productivity and public image, while reducing overall compliance costs and potential liability
• Properly account for environmental issues in business transactions

Our expertise includes:

• Complex Clean Air Act, Hazardous Waste Act, Clean Water Act, and other major rulemaking development and litigation
• Multimedia Environmental Compliance Audits
• Compliance assistance counseling
• Enforcement defense and litigation
• Toxic chemical regulation and risk assessment
• Toxic tort litigation
• Contaminated property transactions
• Site remediation, cost recovery, and contribution action negotiations and litigation
• Occupational Safety and Health Act (OSHA) rulemaking intervention, compliance counseling, and litigation

Legislative and Regulatory Counseling

Kelley Drye is actively involved in advising and representing corporate clients, trade associations, professional organizations, and other entities on federal, state, local and international environmental matters. These matters include a broad range of federal legislative issues pertaining to air and water pollution, solid and hazardous waste, toxic substances, pesticides, endangered species, wetlands, and biotechnology.

On the administrative level, we provide both advice and representation for clients participating in rule-making and policy-making activities by federal regulatory agencies, including the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, and the Occupational Safety and Health Administration. We have an active regulatory practice dealing with environmental matters under all federal and state environmental statutes, including the federal Clean Air and Water Acts, the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act, the Safe Drinking Water Act, the Emergency Planning and Community Right-to-Know Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the National Environmental Policy Act, the Endangered Species Act, the Occupational Safety and Health Act, and related state statutes. In addition to representing clients in regulatory proceedings and rulemaking challenges, the Firm advises corporate clients on cost-effective strategies for meeting federal, state and local permitting requirements concerning the construction and operation of all types of industrial/manufacturing facilities and power plants, as well as residential and commercial developments.

Another important element of our environmental practice includes counseling on interpretations and guidance relating to all environmental aspects of commercial/industrial/manufacturing operations and activities. For example, we have provided regulatory guidance with respect to toxic air and other emission issues, federal and state water pollution standards, solid and hazardous waste management requirements, leaking underground storage tanks, used oil management, corrective actions, toxic substance notification and reporting requirements, hazard communication programs and contingency guidance, community right-to-know reporting matters, and occupational standards. In addition, because of our substantial experience in the Superfund area, we have provided detailed regulatory advice on all facets of response and remedial actions pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). We have also advised clients on issues related to international environmental regulation such as the application of environmental standards developed by organizations like the World Bank and the International Monetary Fund.

Clean Air Act

Complex Clean Air Act rulemaking proceedings and litigation are a core element of Kelley Drye’s Environmental Law practice. We have lobbied successfully for revisions to Title III—the Hazardous Air Pollutants title—in the 1990 Clean Air Act amendments. Since then, we have been engaged actively on behalf of our clients in almost every significant rulemaking the U.S. Environmental Protection Agency (EPA) has undertaken to implement that law.

Since 1990, we have also represented off-road engine and equipment manufacturers, petroleum refineries, and motor fuel marketers on many aspects of “mobile source” environmental regulation. We shape legislation on Capitol Hill and negotiate and challenge emission regulations and enforcement decisions issued by the EPA, the California Air Resources Board (CARB), and numerous individual states.

For stationary sources, our work has included:

• Delisting the stainless and non-stainless steel industry from regulation as a “major sources” category under Section 112(d)
• Exempting the stainless steel finishing industry from the hydrochloric acid pickling MACT rule
• Litigation and negotiation over MACT rules applicable to secondary aluminum smelters, petroleum refining, bulk petroleum storage, brick making, iron and steel foundries, integrated iron and steel making, pulp and paper manufacturing, and plywood and composite wood products
• Intervention on behalf of the EPA in litigation seeking to compel the agency to regulate carbon dioxide as a criteria pollutant
• Rulemaking and litigation on Title V permit regulations

We are currently working on behalf of our steel clients in developing an Area Source rule for Electric Arc Furnace Steelmaking, and on behalf of our Shipyard clients on one of the first residual risk rules under Section 112(f).

We have challenged other EPA rules dealing with Clean Air Act Title V permits, modification procedures, and monitoring requirements; New Source Performance Standards; and National Ambient Air Quality Standards—including the recent Non Attainment Area Designations for Ozone and PM2.5.

We counsel clients on compliance with the New Source Review regulations, and provide assistance with obtaining New Source Review permits at the state or regional level. We are currently intervening on behalf of the EPA in litigation challenging EPA’s New Source Review reforms and lobbying the EPA to promulgate additional reforms dealing with the routine maintenance repair and replacement provision, as well as policies on aggregation and de-bottlenecking.

Our work on mobile source and fuel-related issues includes:

• Negotiating CARB and EPA regulations applicable to evaporative and exhaust emissions from off-road engines and equipment
• Successfully challenging illegal state opt-ins of CARB mobile source regulations
• Defending engine and equipment manufacturers against alleged violations of EPA and CARB emission regulations
• Assisting companies with developing cost-effective compliance strategies to certify products to evaporative and exhaust standards
• Developing technical comments to improve CARB and EPA inventory and exposure models for various pollutants and products
• Challenging the EPA’s ultra-low sulfur diesel fuel regulations
• Negotiating various aspects of the fuels title of the national energy policy legislation
• Assisting companies with developing compliance plans for implementation of new gasoline and diesel fuel regulations
• Defending motor fuel marketers against alleged violations of EPA motor fuel emissions and composition regulations

Contaminated Property Transactions and Brownfields Redevelopment

Environmental liabilities can be a major factor in many types of corporate transactions. Since the advent of Superfund, companies have approached property transactions with a wary eye. Joint, several, and retroactive liabilities typical of the Superfund program have left many unsuspecting companies holding significant liability for contamination caused by others. Today, sophisticated companies know how to manage and control potential liabilities associated with business acquisitions.

Kelley Drye’s Environmental Practice Group advises and counsels a broad range of companies on specific environmental issues relating to these transactions, including real estate purchases, corporate mergers and acquisitions, and commercial lending. Our team of environmental professionals, lawyers, and engineers oversees cost-effective site investigations, manages data, and assesses potential liability. We cover all aspects of the federal, state, local, and foreign laws that may affect a particular corporate transaction. Additionally, we counsel clients, negotiate indemnification agreements, oversee risk assessments and remediation processes, and secure insurance protection arrangements where appropriate.

Our work in this area includes:

• Advising steel companies in assessing site contamination for proposed acquisitions and in managing site investigation and remediation processes
• Negotiating RCRA corrective action orders and implementation at refinery, manufacturing, and landfill sites
• Representing a large midwestern municipality in acquiring and redeveloping former smelter and other industrial sites for park, civic center, arena, and retail use
• Representing companies in negotiating the purchase or lease of contaminated properties in order to take advantage of innocent landowner and bona fide prospective purchaser defenses
• Representing various companies individually or as common counsel in Superfund site investigations, litigation, or administrative order proceedings

On the state level, we have been involved in transactions triggering state requirements such as the New Jersey Industrial Site Recovery Act and the Connecticut Property Transfer Act, acting as counsel for sellers, purchasers, and lenders involved with industrial sites. With its corporate and real estate experience, the Firm offers significant expertise in advising companies on the complex issues relating to potential environmental liabilities that can arise in any type of business transaction.

We lobbied on the Small Business Liability Relief and Brownfields Revitalization Act of 2002 and have counseled several clients on how to avoid or minimize liability while acquiring and restoring formally used sites to productive use. Our attorneys have successfully litigated contribution and cost recovery actions, Superfund defense actions, and numerous other contaminated property cases. Our technical professionals conduct or advise on much of this work to insure cost-effective results.

Our Environmental Practice Group also has been on the forefront of successful Brownfields urban/suburban redevelopment projects, working with developers, and investor clients to maximize legal protections available under emerging statutory liability relief regimes and financial incentives. Our attorneys provide counseling on strategies for successfully marketing environmentally impaired properties, employing innovative approaches to retain value in the face of uncertain and unpredictable environmental risk while ensuring effective elimination of post-transaction liability.

The Firm offers “full service” environmental regulatory counseling for its financial institution clients, advising them on such key legal issues as the negotiation of environmental service agreements, the review of environmental audit reports, drafting of contractual protections and negotiation of secured creditor insurance policy coverage. We also counsel a wide range of financial service institutions on lender liability issues arising out of real estate transactional matters. We have developed and implemented environmental protocols for major secondary mortgage marketing institutions and commercial bank concerns, and have advised numerous other financial service and lending institutions on potential environmental liabilities in specific transactions on a case-by-case basis.

Environmental Litigation, Enforcement Defense and Toxic/Tort Litigation

Although our Environmental practice focuses on shaping and interpreting environmental laws and regulations and advising our clients on cost-effective compliance, we recognize that litigation happens—and we expertly defend our clients when it does.

Kelley Drye has one of the top environmental litigation practices in the country, with expertise in all aspects of environmental and toxic tort law. Our lawyers have both substantive knowledge and extensive litigation experience. We have tried cases under the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act, the Clean Air Act, the Clean Water Act, and equivalent state laws and underlying regulations. This litigation work runs the gamut from federal civil judicial (Department of Justice) prosecution, to EPA administrative enforcement, to state-court proceedings and citizen suits. The Firm’s team of litigators currently represents BP in eleven cases, including one class action, brought by residents of Greenpoint Brooklyn over groundwater contamination and vapor intrusion associated with a major spill of petroleum products attributable to a refinery operated by another petroleum company. This engagement involves federal, state, and local issues, as well as alleged toxic tort exposures.

We have successfully defended and settled dozens of enforcement cases brought by the Department of Justice (DOJ), the U.S. Environmental Protection Agency (EPA), state agencies or citizen groups in U.S. District Courts, administrative proceedings, and state fora. John Wittenborn, Chairman of the Environmental Practice Group, formerly served as a litigation manager at the DOJ, supervising all enforcement cases filed in EPA Regions I, II and VI. He and other Kelley Drye attorneys have counseled and defended companies in government and citizen enforcement cases under every major federal environmental statute and equivalent state laws.

Our attorneys know the law and advise clients on when and how to defend and negotiate. Our economic subsidiary, Georgetown Economics Services, knows how to run EPA’s penalty calculation and settlement models, providing valuable assistance to our attorneys in dissecting and evaluating government penalty claims. We pioneered the use of supplemental environmental projects to defray penalty dollars into beneficial environmental projects. We have the experience, expertise and horsepower to defend your company and employees vigorously and efficiently in civil or criminal proceedings and, when appropriate, to negotiate to obtain the best outcome possible.

In the Superfund area, we have been responsible for advising a wide range of potentially responsible parties (PRPs) under CERCLA and similar state laws, and for organizing and participating in the formation of various types of PRP groups during negotiations with EPA regional offices. We have represented numerous PRP groups and individual corporate entities in negotiating settlement agreements and judicial consent decrees with state governmental agencies.

The Group has acted as defense counsel in government cost recovery actions brought under CERCLA, as well as in private cost recovery and contribution actions. Specifically, we have provided counsel in a broad range of cost recovery actions seeking reimbursement for the cleanup of soil and groundwater contamination due to leaking above- and below-ground storage tanks, historical industrial operations, and environmental spills and casualties.

Other litigation experience includes:

• Representing the State of Nebraska as Special Assistant Attorney General in defense of a $150 million claim for denial of a low-level radioactive waste disposal license
• Serving as trial counsel on behalf of a large municipality in a toxic tort case alleging birth defects and other injuries associated with products used in the disinfection of drinking water
• Representing steel companies, refineries, leather tanneries, shipyards, and others in Clean Water and Clean Air enforcement defense litigation
• Serving as common counsel for companies in litigation under Unilateral Administrative Orders issued pursuant in Section 106 of CERCLA
• Representing PRPs at more than two dozen Superfund sites
• Serving as trial counsel for Weyerhaeuser Corporation in RCRA/CERCLA cost recovery action

Antimicrobial Pesticide Regulation

With the explosion of consumer interest in all things antimicrobial, many companies are seeking to tout the ability of their products to kill or resist bacteria, viruses, mold, and fungi. In doing so, these companies trigger, often unwittingly, the pesticide registration requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In response, the U.S. EPA has focused enforcement resources on prosecuting companies that market products that have not obtained an EPA registration in advance. Further, with the proliferation of many products with dubious antimicrobial benefits, EPA regulators are initially skeptical of many applicants for registration.

Kelley Drye can help guide your company through FIFRA’s maze of regulatory and data requirements. Our familiarity with the relevant EPA regulators adds an important level of credibility that can help overcome their initial skepticism and assist in obtaining the required EPA approval to market an antimicrobial product. Our work not only involves providing advice on the registration of pesticides, but also the advertising and other requirements applicable to consumer products that claim to have “antibacterial,” “antimicrobial,” or other pesticidal effects.

We can help you:

• Understand the numerous registration options that are available and select the approach best-suited to your marketing needs
• Identify and generate the data necessary to demonstrate the safety and efficacy of an antimicrobial product
• Develop appropriate antimicrobial marketing claims and strategies
• Utilize the “treated article exemption” for products that incorporate a pesticide to protect the product itself
• Defend an EPA enforcement action

Compliance Audits

Working closely with our experienced environmental engineers, Kelley Drye is actively involved in counseling clients in developing the internal procedures necessary to assure compliance with the myriad of federal and state environmental regulations. Our attorneys have conducted dozens of detailed, comprehensive, multimedia compliance audits under the EPA’s audit policy and similar state programs for a wide range of corporate entities. Our comprehensive, multimedia compliance checklist has become a standard in the industry – ensuring that our clients’ environmental management programs satisfy the requirements and protect their business, officers, shareholders, and employees from the costly penalties and related negative repercussions of noncompliance.

Kelley Drye’s experience in conducting multimedia audits has also helped us counsel our clients on environmental compliance obligations. This knowledge has been instrumental in helping our clients respond to violation notices or other enforcement-related activities. Our position as Environmental Counsel to several national trade associations has allowed us to become involved in the development of many of the EPA’s complex regulatory programs. Having been involved intimately in the development of the rules, we are in a unique position to advise companies on how to comply with them.

Kelley Drye has led an effort since the mid-1990s to obtain legal privilege protection for environmental audits. As a result of our work on behalf of the Coalition for Improved Environmental Audits, audit privilege laws have been adopted in more than 30 states. On the federal level, with participation from Kelley Drye attorneys, the U.S. Environmental Protection Agency (EPA) produced an audit policy that provides for a waiver of civil and criminal penalties, under certain conditions, for the disclosure of violations uncovered in the course of environmental audits.

Occupational Safety and Health

We also work with our clients to develop comprehensive safety and health programs, commonly teaming up with our environmental experts to conduct joint environmental and occupational safety and health audits of our clients’ facilities to assist them in proactive compliance management. When OSHA compliance issues arise, our lawyers are skilled in challenging citations when necessary, or settling them when appropriate.

We provide counseling and assistance in all major OSHA program areas, including:

• Hazard Communication
• Process Safety Management
• Lock Out/Tag Out program
• Ergonomics
• Blood Borne Pathogens
• Powered Industrial Trucks
• Fall Protection
• Electrical Safety
• Accident/Incident Loss Workday Reports
• Record Keeping
• Heat Stress

Examples of our work include:

• Leading a coalition of food manufacturers and marketing clients in negotiating changes to the OSHA Ergonomics Rule
• Leading a coalition of manufacturing clients in steel, shipbuilding and chromium chemicals industries rulemaking that involved proposed workplace exposure standards for hexavalent chromium
• Intervening in litigation filed by a citizens group and union related to the promulgation of health standards for hexavalent chromium occupational exposure
• Conducting OSHA compliance audits at leather tanning and steel manufacturing facilities
• Regular counseling of major manufacturing industries on complex OSHA workplace citations resulting from wall-to-wall compliance inspections

Toxic Chemical Regulation and Risk Assessment

Astute environmental law practitioners understand that the field is evolving rapidly into the law of risk assessment. Kelley Drye understands how federal and state agencies use risk assessment to formulate policies and regulations that have a substantial impact on industry. Our attorneys and in-house technical experts know how to evaluate whether agency actions (e.g., proposed rules, permit decisions, etc.) reflect a proper consideration of actual risks to human health or the environment, and to craft legal and policy arguments in response. We also are adept at helping industry formulate marketing or regulatory strategies using risk-based analysis.

Kelley Drye represents a wide variety of industries that manufacture or use metals and metal products. We are experts on the health effects of chromium, nickel, copper, zinc, lead, mercury, and other metals, and use this expertise to benefit our clients on regulatory and litigation matters involving environmental, workplace, and consumer product laws and regulations. Our clients include carbon and specialty steel manufacturers, copper producers and fabricators, shipbuilders, and chromium chemical manufacturers and users, such as the leather industry.

Our experience includes:

• Developing a risk assessment to demonstrate that steelmaking slag is a product, and not a waste; has a chemical composition and structure resembling naturally occurring material (i.e., rocks); and has many uses that pose no significant increased risk to human health or the environment
• Providing detailed critiques of agency risk analyses in support of rulemaking activity, including, most recently, comments and testimony regarding OSHA’s proposed workplace standard for hexavalent chromium
• Persuading the U.S. EPA to rescind guidance that would have required Toxic Release Inventory (TRI) reporting for chemicals in steelmaking slag sold for use as a product
• Persuading the National Toxicology Program (NTP) to change the listing for chromium to identify only specific chromium compounds, and both NTP and the California Proposition 65 program not to list “nickel alloys” as carcinogens
• Convincing the U.S. EPA not to identify manganese as a “hazardous constituent” or establish a universal treatment standard for this substance under the Resource Conservation and Recovery Act
• Using risk-based arguments to persuade the U.S. EPA that no further regulation was necessary for wastewater discharges from the carbon and specialty steel, shipbuilding, and industrial laundry industries
• Obtaining relief from permit limits for chromium discharges that were based on the mistaken assumption that all chromium is in the more toxic hexavalent form

For further information about Kelley Drye's Environmental Law practice group, please contact:

John L. Wittenborn
(202) 342-8514
jwittenborn@kelleydrye.com