I assist my clients with matters involving both the United States Environmental Protection Agency and state environmental protection agencies, including the Michigan Department of Environmental Quality, the New York Department of Environmental Conservation, and the Texas Commission on Environmental Quality. I also handle matters involving other state and federal agencies, such food and drug agencies and agriculture departments. Over the course of my career, I have become familiar with the many different divisions within these agencies, such as those responsible for wetlands and other natural resources, those regulating solid and hazardous waste, those responsible for air permitting and compliance, underground storage tanks and other matters.
Working with agencies requires more than knowledge of the law. For any negotiation to be successful, an advocate must recognize the ways internal priorities, organizational structure, political changes and pressures on agency personnel can all affect how a particular case is handled.
Even when not in litigation, state and federal Superfund matters, known as Part 201 cases in Michigan, involve many competing interests, complex regulations, and difficult choices. Counsel may be needed to negotiate with state and federal regulators, municipal governments, private parties, and consulting firms. The advice of counsel can be indispensable when making choices related to site investigation, feasibility analysis, remedial action, agency oversight, no further action letters, and long-term operation and maintenance.
The Superfund cleanup process is complex. Existing contamination may spread, and new sources of contamination may be discovered as a cleanup progresses. Landfills may generate leachate and methane. Plumes of contaminated groundwater may be affected by seasonal changes. Measures to control sources of contamination and actions to remove contaminated media may have to be started and monitored. Often, approved remedial measures prove to be less than fully successful, requiring the responsible parties to go back to the drawing board to consider supplemental remedies.
Throughout this process, which can commonly take 30 years to implement completely, other regulatory actions may lurk and threaten responsible parties. State and federal agencies may seek damages for harm to natural resources, a substantial cost independent of the remediation itself. Five-year reviews involve agency assessment of remedial success and failure, and may result in additional demands. Changes in the financial status of PRPs, such as bankruptcy of one or more members of a PRP group, may increase the costs borne by the surviving companies. Disputes with agencies regarding securing the benefits of a financial assurance mechanism or bankruptcy funds settlement for response actions may require sustained attention. Differences in corporate management styles or priorities may result in disputes within a group as to collective implementation of planned work or the group’s joint responses to agency demands.
When these types of issues arise, you will want to have counsel working for you who understands your priorities.
Laws governing environmentally contaminated sites have grown increasingly stringent over the years. In many instances, the most cost-effective way to fully remediate a contaminated site involves a prolonged period of operations and maintenance of remedial technologies. This “operations and maintenance” phase of remediation can last for years, and it is difficult to predict when the operating remedial technologies will bring contamination down to acceptable levels.
In recent years, I have begun to work more with clients to reevaluate their existing O&M plans and to identify alternative, accelerated paths to complete their remediation projects. This approach can require additional effort, but it also has the benefit of bringing to a close a burdensome process that can otherwise seem unending. Agency agreement to closure can stop the expenditure of cleanup funds and legal defense funds, enable a company to remove the cost of closure from reserves, end the necessity of financial assurance, and allow the transfer of interests without the complication or hindrance of an ongoing cleanup.
DUE DILIGENCE, BEA & DUE CARE
There are burdensome legal obligations associated with owning environmentally contaminated real property. Therefore, real property acquisitions, especially acquisitions of commercial and industrial properties, need to be handled with care. Often, these real property acquisitions require professional consideration of the risks and liabilities associated with owning contaminated or potentially contaminated property. Due diligence during the purchase of real property involves assessment of known and suspected environmental conditions. The first step in a due diligence investigation is the preparation of a "Phase One" report. This report describes the historical uses of the property and notes any existing environmental site conditions. A “Phase One” report may lead to a "Phase Two" report to investigate and assess existing contamination at the property.
In Michigan, state statutes allow a prospective purchaser of real property to avoid becoming liable under state law for preexisting environmental contamination by conducting a baseline environmental assessment (a “BEA”). By characterizing preexisting contamination at the property, a BEA essentially serves as documentation that preexisting contamination was not caused by the prospective purchaser. With a properly executed BEA, the prospective purchaser will not be liable under state law for the contamination described in the BEA.
However, the statutes require that the holder of a BEA exercise “due care.” These “due care” requirements focus on protecting public health and preventing the exacerbation of existing contamination. A professional due care plan can help a non-liable property owner preserve BEA-provided protections. Failure to prepare or comply with a due care plan can result in exposure to liability and loss of BEA-provided protections.
SITING AND COMPLIANCE
Applying for and maintaining compliance with environmental permits can be a complicated process. A successful application for an environmental construction permit, such as those granted for wind turbine siting or dam maintenance or removal, for example, will be backed by professional knowledge of the pertinent regulations. Similarly, maintaining compliance with renewable operating permits often requires professional consultation regarding the terms of the permit. In either scenario, a party often benefits from careful, experienced negotiation with regulatory agencies and interested stakeholders. These siting and compliance matters can vary from a narrow issue of compliance with a specific regulation (such as limits on particulate emissions) to balancing competing regulatory, political and social demands and view points, such as the effects on fish, recreation and property values along a lake or river whose level is sustained with a dam.
Wetlands protection is an area of environmental regulation that illustrates a nearly complete reversal of the public perspective on natural resources. Not that long ago, wetlands were often called swamps and derided as mosquito breeding grounds. Permits were issued to fill wetlands, with some government entities going so far as to seek to fill some of these low-lying areas with landfills. Now, wetlands are considered valuable and are almost universally protected.
In Michigan and some other states, regulations also protect sand dunes, govern other use of natural resources such as sand and gravel mining and oil and gas development.
State and federal environmental agencies regulate many aspects of the ownership, use, extraction, mining, development, and other actions impacting most all natural resources. Local governments also regulate activities under zoning, land use and other authorities.
The U.S. Environmental Protection Agency and state-level environmental regulatory agencies may initiate enforcement actions to correct alleged violations of environmental statutes and regulations. Examples of alleged violations that would often result in enforcement actions include:
- Emissions from a manufacturing plant in excess of permitted limits;
- Emissions not covered by permit-based regulation but otherwise actionable under statute and common law; and
- A knowing breach of permit requirements or knowingly inaccurate reporting, either of which would likely be a criminal offense.
Defending clients in enforcement matters demands more than just zealous advocacy. Experience is also essential. An understanding of the regulatory framework and knowledge of government practices and priorities in civil and criminal enforcement matters can make all the difference in negotiating resolutions to enforcement actions.
SOLID & HAZARDOUS WASTE
The management of solid and hazardous waste involves a complex web of combined federal and state statutes and regulations. The management of solid waste may raise issues pertaining to recycling exemptions and methods, the status of liquid versus solid waste, permitting and operation of solid waste operations such as landfills, and the storage and transportation of waste. Hazardous waste management may require registration, compliance with generation and storage rules, manifesting and transportation requirements, and managing the cost and compliance requirements for treatment or disposal in approved, safe, and compliant treatment, storage and disposal facilities.
Some of the most common errors in waste management arise out of rules applicable to the time allowed for on-site storage, rules concerning exposure and discharge to the environment, and rules governing proper disposal and record-keeping. Specific materials and particular constituents in the waste stream may have a significant bearing on what regulations apply and what actions must be taken.
"UST" & OTHER ACRONYMS
Environmental law is a complex system of science and regulation. It is made more difficult to follow by its propensity to use acronyms to abbreviate long names and phrases.
These acronyms are used for many laws such as: the federal Superfund law, CERCLA (the "Comprehensive Environmental Response, Compensation and Liability Act"); the federal hazardous waste management law, RCRA (the "Resource Conservation and Recovery Act"); the law regulating the production and importation of chemicals, TSCA (the "Toxic Substances Control Act"), and FIFRA (the "Federal Insecticide, Fungicide and Rodenticide Act").
Acronyms for chemicals and substances abound, as well, from PCBs (for the persistent and bio-accumulative manufactured chemicals known as "polychlorinated bi-phenyls") to VOCs ("volatile organic compounds"), and ACM ("asbestos containing material").
Acronyms are also used for many common terms and phrases that recur in environmental laws and regulations, like USTs ("underground storage tanks") and GRCC ("generic residential cleanup criteria).
Companies operate under complex regulatory regimes that are not limited to strictly environmental concerns. While environmental law is my area of expertise, I also assist clients on non-environmental regulatory issues. My experience dealing with regulatory agencies has enabled me to defend against alleged violations and help clients take steps to comply with regulation and reduce or eliminate penalties or other regulatory restrictions on their actions.