Environmental Regulatory Compliance

Overview

Dykema’s environmental lawyers have broad experience in assisting clients with environmental regulatory matters including in such areas as application and negotiation of permits and consent orders for air, waste management, water, underground storage tank, site remediation and property redevelopment related matters. With experience that crosses all major segments, Dykema lawyers are prepared to help clients through even the most complicated environmental enforcement and administrative actions.

Importantly, our strong relationships with state and federal regulatory agencies help ensure a smoother, more efficient resolution to client matters. We regularly partner with clients and regulatory agencies to negotiate settlements in the form of administrative orders. As part of the negotiation process, we also work with our clients and the appropriate agency to seek amendments to permits to build, which allows operations to continue that are consistent with client permit limits.

Clients also benefit from Dykema’s comprehensive understanding of the regulatory process, its nuances, as well as the science behind the rules that govern the regulatory process. Our lawyers stay on top of emerging regulations and environmental trends, which allows our team to counsel clients on those proactive measures that help minimize future risks and operating costs, and avoid enforcement. As an example, our understanding of the EPA’s BEN model—used to calculate administrative penalties—and its inputs, helps us minimize client penalties for regulation violations.

Experience Matters

Key areas of representation include:

Air

  • We represent members of the automotive, pharmaceutical, aerospace and oil industry on matters relating to emissions from manufacturing, diesel, gasoline and jet engine testing, and research and development facilities. The scope of our representation includes assistance in the audit/assessment of facility operations and permitting needs, the development and negotiation of permits and consent orders, and compliance/penalty issues arising under permit requirements. We had the lead for a major automotive supplier on a significant enforcement matter that led to the first successful and cost-effective application of air injection control technology to address emissions from engine testing, which led to substantial savings on penalties and operating costs.

Waste Management

  • We represent members of the automotive, vehicle service and waste services industry on matters relating to characterization, storage, treatment, shipment and disposal of waste materials. The scope of our representation includes assistance in the audit/assessment of facility operations and permitting needs, the development and negotiation of permits and consent orders, and compliance/penalty issues arising under permit requirements. We have developed special expertise on electronic waste and vehicle end of life cycle requirements in connection with the domestic and foreign production and distribution of materials, parts, components and products, including certification, reporting, product planning, contracting and supply chain issues.
  • We held precedent-setting role in assisting a major automotive supplier obtain the first hazardous waste management unit closure permit from the Indiana Department of Environmental Management based on an “alternate concentration limit.” This assignment involved the closure of a sludge lagoon at an operating facility which for an extensive period of time received hazardous materials. Our ability to secure site-specific closure criteria in the permit—as opposed to state-wide default criteria—amounted to over $1 million in savings for the company. In achieving this successful result, Dykema handled all permit negotiations, the filing of a permit provision appeal and coordination of expert and community support for our proposal.

Water

  • Dykema lawyers handled the appeal of a large municipality with one of the largest water/sewer systems in the world regarding an NPDES permit to both the Michigan Office of Administrative Hearings and federal court (under a preexisting Consent Judgment). Appeals were brought by numerous to NPDES permits issued to our client and several other municipalities containing massive combined sewer overflow (CSO) control and new effluent limitations for toxic substances, including PCBs and mercury. Key issues included, among other things, standing under the Clean Water Act and its state equivalent to assert these claims, the development of water quality based effluent limitations for toxic substances, and burden of proof in administrative proceedings. We successfully established that the conventional standing requirements apply in contested case proceedings.

Underground Storage Tanks

  • We have significant experience representing clients on regulatory and enforcement matters concerning underground storage tanks (USTs), including serving as one of Shell’s select Strategic Partner firms and as BP’s UST Portfolio Regional Counsel. Our UST work spans multiple sites in several states, and it has included installation, closure, sale/lease, release reporting, site investigation/remediation, access to off-site and former properties, fines/penalties and property damage claims. We have also had a leading role on behalf of a stakeholder in a work group of industry and agency representatives involved in significantly amending the law in Michigan regarding corrective action for releases from USTs.

Consumer Products

  • Because of the increasing global importance of chemical regulation in consumer products, both for environmental and consumer health and safety reasons, we regularly work with clients on a wide range of product-related chemicals management issues. We have assisted clients, including leading manufacturers in their industries, in developing and maintaining Restricted Substances Lists and integrating such RSL requirements into their global supply agreements. In addition, we advise clients with respect to unilateral and consortia efforts aimed at identifying industrial chemistries that may provide more environmentally desirable and sustainable alternatives to existing chemicals in the manufacturing process. We also represent clients before agencies, including the EPA and the U.S. Consumer Product Safety Commission, in agency inquiries or investigations involving use of regulated chemicals in products, and advise clients with respect to permissible environmental marketing claims (“green” claims) for their products under the Federal Trade Commission’s environmental claims enforcement policy guidelines.

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