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Kelley Drye provides comprehensive solutions for complex environmental litigation, and administrative and regulatory challenges, while facilitating effective business strategies. Our team shapes, interprets and implements environmental laws and regulations to serve our clients' interests – on Capitol Hill, at the Environmental Protection Agency (EPA) and in the boardroom or factory floor. For more than 30 years, Kelley Drye has helped clients achieve their environmental policy and compliance goals and business strategies. Combining the unique skill sets of attorneys, policy experts and engineers, we advocate client interests in whatever forum serves their strategic needs.
Environmental Legislative and Regulatory Counseling. Kelley Drye counsels clients on 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 advise and represent our clients on participation in rule-making and policy-making activities by federal regulatory agencies, including the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers and the Occupational Safety and Health Administration (OSHA).
We have an active regulatory practice dealing with environmental matters under all federal and state environmental statutes, including:
- Clean Air and Water Acts
- Conservation and Recovery Act (RCRA)
- Resource Toxic Substances Control Act (TSCA)
- Safe Drinking Water Act
- Emergency Planning and Community Right-to-Know Act
- Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
- National Environmental Policy Act, Endangered Species Act
- Occupational Safety and Health Act
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 on provisions of the 1990 Clean Air Act amendments. Since then, we have been engaged actively on behalf of our clients in almost every single rulemaking the EPA has undertaken to implement that law. 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.
Climate Change. We represent many manufacturing and energy clients and industry associations that will be significantly impacted by potential climate change legislation. Accordingly, Kelley Drye is engaged and active with this issue. In recent years, we have developed particular experience representing renewable energy clients, such as the advanced biofuels (Biomass-to-Liquids and Gas-to-Liquids) industries. Through our work with establishing and representing the Low Carbon Synthetic Fuels Association, we are very familiar with the Department of Energy (DOE) Loan Guarantee Program and grant programs that could be a source of funding to the renewable energy or "cleantech" sector. We are closely tracking the current climate and energy bills for numerous clients and are very familiar with the renewable energy and cleantech provisions within the bills. Also, we are actively engaged with EPA on efforts to regulate climate change under the existing Clean Air Act.
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. In doing so, these companies trigger, often unwittingly, the pesticide registration requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In response, the 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 products with dubious antimicrobial benefits, EPA regulators are initially skeptical of applicants for registration. We help clients navigate FIFRA's maze of regulatory and data requirements. Our familiarity with the relevant EPA regulators adds an important level of credibility to our service. Our work not only involves counseling on registration of pesticides, but also the advertising and other requirements applicable to consumer products that claim to have antibacterial, antimicrobial or other pesticidal effects.
Contaminated Property Transactions and Brownfields Redevelopment. Kelley Drye helps its clients manage and control potential environmental liabilities at the federal, state, local and international level associated with business acquisitions. 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. Our team of environmental professionals, lawyers and engineers oversees cost-effective site investigations, manages data and assesses potential liability. Where appropriate, we counsel clients, negotiate indemnification agreements, oversee risk assessments and remediation processes, and secure insurance protection arrangements.
Environmental Litigation, Enforcement Defense and Toxic/Tort Litigation. Kelley Drye has one of the top environmental litigation practices in the country, with comprehensive expertise in environmental and toxic tort law. We have successfully defended and settled dozens of enforcement cases brought by the Department of Justice (DOJ), the EPA, state agencies or citizen groups in the U.S. District Courts, administrative proceedings and state fora.
With respect to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, we advise a wide range of potentially responsible parties (PRPs) under CERCLA and similar state laws and organize various 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 government agencies. 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.
Our attorneys know the law and advise clients on when and how to defend and negotiate. John Wittenborn, Chair of the Environmental Law practice, formerly served as a litigation manager at the DOJ, supervising all enforcement cases filed in EPA Regions I, II and VI. Our economic subsidiary, Georgetown Economics Services, knows how to run EPA's penalty calculation and settlement models, providing cost-effective assistance to our attorneys as they evaluate government penalty claims. We pioneered the use of supplemental environmental projects to defray penalty dollars into beneficial environmental projects.
Compliance Audits. Together with our experienced environmental engineers, Kelley Drye develops the internal procedures necessary to assure compliance with the myriad of federal and state environmental regulations. We have conducted dozens of comprehensive multimedia compliance audits under the EPA's audit policy and similar state programs. Our 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 repercussions of noncompliance.
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, the 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.
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, together with our significant multimedia compliance audit experience, we are in a unique position to advise companies on how to comply with environmental regulations. Moreover, our OSHA compliance experience enables us to provide our clients' with the cost-saving option of conducting joint environmental and occupational safety and health (OSHA) audits.
Representative Experience
Clean Air Act
- Represented, since 1990, off-road engine and equipment manufacturers, petroleum refineries
and motor fuel marketers on many aspects of "mobile source" environmental
regulation.
- 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.
- Litigating and
negotiating 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.
- On behalf of steel industry clients, developing an Area Source rule for Electric Arc Furnace
Steelmaking.
- On behalf of shipyard clients, developing one of the first residual risk rules under Section 112(f).
- Challenged 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 Non Attainment Area designations for
Ozone and PM2.5.
- Negotiating CARB and EPA regulations applicable to evaporative and exhaust emissions from off-road
engines and equipment.
- 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 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.
Climate Change
-
Representing the Low Carbon Synthetic Fuels Association in various activities, including the DOE
Loan Guarantee Program and other grant programs.
- Representing multiple clients in responding to EPA efforts to regulate CO2 and other GHG
under the Clean Air Act.
- Representing a manufacturer of electric car retrofit kits on the DOE Loan Guarantee Program.
Contaminated Property Transactions and Brownfields Redevelopment
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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 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.
-
Acted as counsel for sellers, purchasers and lenders involved in transactions triggering state
requirements such as the New Jersey Industrial Site Recovery Act and the
Connecticut Property Transfer Act.
-
Lobbied on the Small Business Liability Relief and Brownfields Revitalization Act of 2002.
-
Counseled several clients on avoiding or minimizing liability while acquiring and restoring
formally used sites to productive use.
-
Successfully litigated contribution and cost recovery actions, Superfund defense actions and numerous
other contaminated property cases.
- Represented developers and investor clients on Brownfields urban/suburban redevelopment projects,
maximizing legal protections available under emerging statutory liability
relief regimes and financial incentives.
-
Counsel clients on strategies for marketing environmentally impaired properties, employing
innovative approaches to retain value in the face of uncertain and
unpredictable risk, while ensuring effective elimination of post-transaction
liability.
-
Advising financial institution clients on negotiation of environmental service agreements, review
of environmental audit reports, drafting contractual protections and
negotiating secured creditor insurance policy coverage.
-
Counseled a wide range of financial service institutions on lender liability issues arising out of
real estate transactional matters.
-
Developed and implemented environmental protocols for major secondary mortgage marketing institutions
and commercial bank concerns.
-
Represented lender in foreclosure action involving a Brownfields redevelopment project.
- Represented the landlord of commercial real estate in a contractual dispute with a tenant involving contamination of playground area.
Environmental Litigation, Enforcement Defense and Toxic/Tort Litigation
- Represented 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.
- Served 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 that two dozen Superfund sites.
- Served as trial counsel for Weyerhaeuser Corporation in RCRA/CERCLA cost recovery action.
- Represented a bankruptcy trustee responsible for selling assets of a debtor in connection with the marketing and
sale of manufacturing facility with legacy soil and groundwater contamination,
and assertion of contractual claim against former owner of property to enforce
obligation for remediating site.
- Represented numerous manufacturers in toxic tort litigation regarding asbestos exposure. After mounting a vigorous
defense, the vast majority of asbestos related cases settled prior to trial.
- Representing a major oil company in a multi-party CERCLA litigation at the Newtown Creek in New York. EPA is
seeking to require our client to conduct a comprehensive investigation and
remediation of a highly contaminated and complex waterway. The litigation
involves negotiations with other PRPs and EPA and will involve third party
litigation.
- Defended major chemical manufacturers in multiple toxic tort actions involving allegations of personal
injuries sustained by current and former semiconductor industry employees and
their offspring.
- Defended a coalition of chromium chemical producers and users in suit in Illinois circuit court alleging that
the Coalition withheld information on toxicity of chromium. Obtained a reversal
on appeal of trial court's denial of the association's motion to dismiss for
lack of personal jurisdiction. In doing so, persuaded the State Appellate Court
that an earlier decision, which affirmed a broad application of the conspiracy
theory of jurisdiction, was wrongly decided.
- Representation of a coalition of iron and steel manufacturers in administrative litigation addressing the
legality of hazardous air pollutant rule promulgated in 2003.
- Representing a coalition of national trade associations in administrative litigation dealing with the EPA
rule on recycling of hazardous secondary materials.
- Representing an apparel manufacturer in negotiations with the state government and third-party
plaintiffs involving claims for response costs incurred and to be incurred at a
Superfund site.
- Represented a Fortune 500 manufacturer of consumer products in a NJ state court action under the New Jersey Spill Compensation and Control Act (state CERCLA
law) for alleged disposal of hazardous substances at gasoline station
properties.
- Represent a recreational vehicle manufacturer in an enforcement matter with California Air Resources Board
(CARB) addressing alleged failure to certify recreational vehicles to
California emissions standards.
- Defending a chemical company in state court action involving cost recovery and tort claims for alleged cross-boundary environmental contamination.
Compliance Audits
- Negotiated a favorable settlement for a metal tube manufacturer as the result of a voluntary disclosure of audit findings showing that the facility operated for several years without a requisite state air operating permit.
Occupational Safety and Health (OSHA)
- Lead a coalition of food manufacturers and marketing clients in negotiating charges to the OSHA
Ergonomics Rule.
- Led 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 from
wall-to-wall compliance inspections.
- Represented a metal fabrication manufacturer in administrative litigation over various alleged regulatory violations resulting in a fatality.
