Agency Enforcement & Private Party Litigation

Overview

Environmental disputes can be some of the most contentious and potentially debilitating a business can face. When the battles get tough, clients rely on Dykema’s considerable courtroom strength and extensive case management skills to help achieve a timely and favorable resolution.

We successfully defend clients in administrative, civil and criminal enforcement actions in administrative and judicial forums where an agency seeks a financial penalty and corrective action. We also help clients prepare and respond to inspections and associated enforcement actions by state and federal environmental and occupational safety and health regulatory authorities, and contest unfeasible or unreasonable permit conditions that prevent them from moving their developments or cleanups forward.

We also have an impressive track record defending clients in actions brought by private parties alleging environmental liability for property or health damage. We are known for our understanding of the science behind the contaminants and their alleged effects, and are skilled at translating those technical details into information easily understood and appreciated by judges and juries. In addition, we are one of a very few firms with a long history counseling companies in disputes with their insurance carriers over coverage of their environmental liabilities. One of these cases, considered a landmark, spanned decades and involved hundreds of millions of dollars in liabilities from an old landfill.

Experience Matters

  • Kalamazoo River Study Group v. Eaton Corporation and ArvinMeritor. We obtained a significant victory for our clients Eaton Corporation and Meritor Automotive when the U.S. Sixth Circuit Court of Appeals affirmed a trail court’s allocation to Eaton of only a small portion of past investigation costs and a zero allocation of future cleanup costs for the Kalamazoo River Superfund Site that could exceed $1 billion according to some estimates. The Sixth Circuit also affirmed the trial court’s decision that the plaintiffs group could not re-open an earlier attained zero allocation of response costs to Meritor, based on supposed new evidence. This win punctuated an eight year battle involving four trials and three Sixth Circuit appeals.
  • British Petroleum v. Hebron, Cass County Circuit Court. This rather rare action involved our client petitioning a court under Part 201 for access to perform remedial work related to a pipeline release on an off-site property due to the property owner’s unwillingness to provide voluntary access under reasonable terms. We were able to quickly secure an order from the court for access to perform all work set forth in a work plan approved by the State of Michigan, severing the damages phase of the case for later disposition and limiting the determination of any such damages to just reasonable compensation for any damages caused by our client’s performance of work on the property (not for any alleged diminution in value or tort claims associated with the presence of contamination in the groundwater). Our ability to secure the court’s access order and bifurcate the case allowed our client to proceed with work without delay, risk of agency enforcement action and without significant expense or damage exposure.
  • Kernan v. Homestead Development. Represented NPDES permittee/developer in third party challenge to the permit. Case tried before State of Michigan Office of Administrative Hearings, Oakland County Circuit Court and Michigan Court of Appeals. Significant issues included: whether discharge of treated wastewater into stream that flows through a wetland requires a wetland permit (obtained ruling it does not), whether such discharge constitutes a trespass when that wetland is located on land owned by a third party (issue largely unresolved due to ripeness concern raised by Court of Appeals), availability of feasible and prudent alternatives, development of WQBELs for phosphorus and interpretation of the water quality anti-degradation rule. Prevailed on claims primarily on showing that no measurable degradation of water quality would result.
  • City of Milan et al. v. Envotech. Represented three municipalities in challenges to the proposed construction of a hazardous waste incinerator, landfill and deep injection well in an adjacent township. The matter involved a wide range of activities, including an appeal to the EPA Environmental Appeals Board of an EPA decision to issue an underground injection control permit, development of overall strategy to challenge projects on environmental law and permit grounds, including creation of interlocal agreement between the parties to fund and effectuate the group opposition to the project, which was never constructed.