Energy and Natural Resources - Performed environmental due diligence for financing of several renewable energy projects including an 80 MW wind farm in southcentral Pennsylvania and a 417 MW run-of-the-river hydroelectric facility located on the Susquehanna River.
Energy Management
Energy management is the proactive, organized and systematic coordination of energy data, procurement, distribution and use of energy to meet facility requirements, taking into account environmental and economic objectives. The benefits of an energy management system include significant energy cost savings, more robust and reliable energy-usage data, and the ability to make informed, strategic decisions regarding energy requirements and consumption.
At Clark Hill, we understand that effective energy management is a process that includes identifying a system that best meets a company’s needs, negotiating strong, enforceable agreements between the client and vendor, and using the information gathered to achieve energy efficiency, procurement, self-generation and other goals. Our highly experienced energy team offers a unique consulting service that combines the expertise of highly regarded energy management professionals along with targeted legal counsel of our energy and utility law attorneys. This allows us to provide the client with true end-to-end energy management advice.
Energy Data Management: System Identification and Vendor Agreements
Understanding energy usage and spend is a core objective of energy management. Clark Hill can help clients identify the best system for gathering utility, energy supplier and usage information. Rather than implementing or managing systems in house, many companies use or are looking to use the expertise and resources of third-party providers. Clark Hill can assist clients with the selection of an appropriate system and/or provider to meet their specific needs. Once systems and vendors have been identified, we perform a detailed legal and commercial review of relevant agreements to help protect our clients, their investments and their valuable information.
Energy Procurement Consulting
Energy markets continue to evolve and provide an increasingly broad range of energy-procurement opportunities. However, along with opportunities come complexities – and potential risks. We help clients analyze and address the full spectrum of issues, including:
- Electricity, natural gas and other commodity-specific issues such as:
- Procurement in an open market / retail choice
- Supplier identification and evaluation
- Contract review and negotiation
- RFP process
- Market monitoring and reporting
- Regulated and monopoly utility supply
- Utility tariff analysis and optimization
- Leverage building, including involvement/persistence, bypass, user groups and political pressure)
- Utility negotiation and special contracts
- Transportation and delivery optimization
- Miscellaneous issues
- Storage
- Balancing
- Ancillary services
- Utility and energy supply tax evaluation and optimization
- Procurement in an open market / retail choice
Clark Hill’s energy management team can provide extensive assistance to support the procurement of electricity and natural gas. We routinely:
- Review a facility's past utility invoices, such as the past twelve months of usage, to determine volume needs and usage patterns. For new facilities, we assist with developing meaningful usage projections.
- Review current facility energy agreements across facilities and service territories. If purchasing is for a series of facilities, we help determine the viability of and path toward a combined purchasing strategy.
- Review supplier backgrounds and creditworthiness.
- Perform analyses of existing utility tariffs and explain details of current rates, rules and obligations. For example, industrial customers run into problems with sharing or providing electricity to fence-line facilities, such as third-party industrial gas facilities, because they do not fully understand complex utility tariff rules.
- Identify relevant tariff rates and research a facility’s options,either as a customer of the utility or with a third-party energy marketer.
- Determine options for forming an energy-buying consortium to aggregate interests with others who are similarly situated.
- Negotiate with the utility and determine if there are special rates or programs that the facility could access that would save money or provide it with longer-term rate stability.
- Evaluate commercial and legal ability for utility natural gas bypass.
- Perform utility tax evaluations and optimization reviews, drawing on our expertise in state tax laws, available exemptions and negotiation of new tax exemptions or credits.
- Negotiate electricity and natural gas relationships and provide continuing support going forward.
Renewable Energy Supply
Many companies are actively looking for better ways to procure renewable energy through direct access to suppliers or improved utility renewable supply tariff rates. Incorporation of a renewable component to an overall energy management plan is a sophisticated effort and requires appropriate, coordinated support to insure that all components of the overall plan will work together. Clark Hill’s energy management team:
- Provides assistance with review of the business case for a renewable project. Due diligence is critical, particularly with regard to existing federal tax credits or incentives, as well as any state programs, credits or incentives.
- Reviews existing utility renewable energy supply tariffs and negotiates new options.
- Provides commercial and legal review of physical supply agreements and contracts for differences, purchase of renewable credits, etc.
Behind the Meter Generation / Self-Generation
One of the best ways to take control of energy cost is through utilization of behind the meter or self-generation opportunities. However, for most energy users, power generation is not a core business or area of expertise. Clark Hill’s energy management team partners with clients to:
- Assist with achieving PURPA designation for co-generation facilities.
- Review existing standby utility tariff rates to understand terms, conditions and costs, and negotiate new standby rates.
- Perform environmental due diligence and pursue permit applications.
- Review utility and transmission system interconnection agreements.
- Perform commercial and legal reviews of major equipment purchase agreements and third-party service agreements.
- Assist with fuel-purchase strategy and supply contract negotiation.
Energy Supply Risk Analysis and Mitigation
There are a number of key risk elements associated with energy supply that, drawing on an effective energy management system, can and must be evaluated and mitigated. These include:
- Physical supply and delivery risks
- Points of equipment ownership transition, particularly from utility to customer
- Equipment ratings, emergency load-shedding procedures, redundancy and backup, common modes of failure for redundant systems, etc.
- Maintenance and inspection programs
- Contractual and cost risks
- Firm vs. interruptible, liquidated damages, replacement supply provisions, force majeure liability, etc.
- Financial hedging
- Fixed-price vs. floating-price contracts
Clark Hill’s energy management team has extensive experience in risk analysis and mitigation. We regularly:
- Ensure that contractual and cost-risk items are addressed in the energy supply contracts.
- Perform a legal review of trading agreements and, for companies using financial hedging instruments, assist with establishing a hedging strategy.
- Help clients mitigate physical supply and delivery risks through a review of existing and establishing new facilities agreements with the utility or supplier.
Energy Efficiency Demand-Response Analysis
Another core element of an energy management program is the evaluation and optimization of energy usage. Effective energy efficiency and demand response can result in significant operational improvements and cost reductions. The attorneys and advisors of our energy management team work with clients to:
- Review existing and negotiate new energy efficiency and demand-response programs offered by the utility.
- Provide counsel on Energy Service Provider Company (ESCO) agreements, including terms and conditions, liability, measurement and verification, etc.
- Conduct commercial and legal reviews of demand-response contracts with aggregation companies.
Experience
Counseling trade associations and leading corporations on regulatory advocacy and compliance
Representing major trade associations, coalitions, and Fortune 100 companies in all federal courts on rulemaking challenges, enforcement actions, and other environmental law issues
Performed due diligence on oil production facilities in Kazakhstan
Drafted, pursuant to a World Bank contract, environmental laws for energy production facilities in Kazakhstan
Defended a gasoline manufacture in several environmental remediation actions
Defended a gasoline pipeline company in a pipeline rupture
Assessed and prioritized the potential environmental cleanup associated with 26 former manufactured gas production sites for natural gas utility
Performed an environmental due diligence regarding compliance with FIFRA during the acquisition of the intellectual property rights to an ozone disinfectant device
Convinced the IRS to expand its interpretation of the applicability of its open-loop biomass tax incentive for using tire-derived fuel in electric power generation
Developing a regulatory strategy for addressing the issue of risk of exposure to electromagnetic fields (EMFs) in the permitting of an electric utility line
Obtaining registration or re-registration of a copper-based pesticide used in water treatment plants, in rice fields, ponds, lagoons, and swimming pools and spas, as algae resistant granules used in roofing shingles, among others
Tracking regulation of nanomaterials for a national trade association and its members
Advised clients concerning whether consumer products present an unreasonable risk and when injuries must be reported. Advice involves physical hazard as well as the presence of chemicals
Advised clients on what claims are pesticidal claims and which are not, including obtaining review and approval from EPA of a product label that allowed sale of the client’s product until a pesticide registration could be obtained which would authorize broader health claims on the product label
Advising clients on the treated article exception to the U.S. pesticide laws
Advising a client concerning the U.S. regulatory requirements applicable to a proposal to export a used product containing high levels of chromium to Europe for reclamation and re-importing the product with the chromium removed
Assisting a trade association in tracking the listing as carcinogens of several chemicals used in its members’ products
Advised several clients concerning how to prepare for a TSCA inspection
Advising clients concerning the TSCA import and export requirements applicable to a range of products
Advising a number of clients regarding liability pursuant to Section 8(e) of the TSCA for failure report to EPA a "study" allegedly indicating the chemical presents an unreasonable risk
Advising a trade association concerning the applicability of proposed hazardous and nonhazardous waste definitions to their member production processes
Advised a natural gas utility in deciding whether to comply with a CERCLA Section 106 unilateral administrative order and negotiated a cost recovery of less than $400,000 as opposed to a $35 million claim
Represented a utility in seeking a Presidential permit for an electric transmission line crossing the Canadian border and various regulatory approvals for the portion of the line which crossed the State of Maine
Advising a company about its potential liability resulting from its historical use of PFOA in the manufacture of a number of products
Evaluated, on behalf of a client, what actions a company should take to protect its workers, the environment, and product users when it begins manufacturing nanosized materials, given that there are no legally binding requirements
Advising various clients on testing procedures for consumer products and on the use of testing laboratories located outside the United States, based on federal agency regulations
Represented a hazardous waste remediation government contractor in multiple matters seeking additional payment when remediation costs exceeded the fixed price cost in the contract
Advising clients on the requirements of the National Environmental Policy Act (NEPA) and state equivalents, including matters involving novel issues
Represented a natural gas utility in the remediation of several manufactured gas legacy sites
Negotiated the transfer of an underground injection well permit for secondary oil recovery wells
While at the EPA, litigated administratively the environmental impact of hot-water discharges from coal-fired plants in New York and Florida and worked extensively with EPA, Fish and Wildlife, and utility ecological experts on ecological risk determinations associated with the plant operations
While at EPA, led the EPA Love Canal and other Niagara Falls team which briefed Congressman, Senators, and worked with the Attorney General of the State of New York and his office
Involving work with a trade association in preparing and submitting confidential business data to the National Highway Transportation Safety Act, comparing NHTSA and European Union methods of testing tires as part of building the administrative record in a rulemaking
Challenged the NHTSA tire pressure monitoring system rule
Involving advocacy on behalf of a mining company for changes to the House of Representative’s Ban Asbestos in America bill
Developing an advocacy strategy for a national trade association to defend its members concerning allegations that the product that the members utilize was likely to be regulated or banned
Testified before a House Committee on numerous occasions regarding specific environmental and small business concerns
Advised and/or negotiated settlements of California Proposition 65 private enforcement actions alleging failure to provide warning labels involving, among other products, water faucets, water filters, antacids, bath mats, purses, coffee, shampoo, construction cones, fruit juices, personal care products, and crystal beads on sports clothing, specialty food products, among others
Represented a New Jersey developer in his lawsuit against an industry research arm due to the contamination of the groundwater near his home with volatile organic chemicals (including trichloroethylene) which had migrated on to his property
Defended potentially responsible parties in successfully reopening Comprehensive Environmental Response Compensation, and Liability Act (CERCLA) records of decisions and negotiating complex remediation approaches, resulting in lowering remedial costs by tens of millions of dollars at each of these sites
Defended clients in enforcement penalty cases brought by various federal agencies, including EPA (various offices), CPSC and the Department of Transportation
Advising a trade association concerning allegations that children and adults may be exposed to carcinogenic and other hazardous chemicals from products made in part of a recycled (post-consumer) product originally manufactured by the trade association’s members. The legal risks include federal and state regulatory liability and potential personal injury claims
Developed scientific expert testimony in a property damage lawsuit against a manufacturer who disposed of arsenic wastes which allegedly resulted in arsenic groundwater plumes in a residential neighborhood; resulting in a jury verdict for the defendant
Developed factual and scientific defenses to a consumer’s personal injury claim that alleged exposure to airborne talcum powder caused injury
Advise mining clients on environmental citizen suits and opposition tactics
Advise mining, energy development, and corporate clients on Clean Water Act Sections 402 and 404 and SMCRA permitting, US Army Corps of Engineers Jurisdictional Determinations and mitigation requirements, NEPA analysis, and NHPA Section 106 compliance and litigation
Advise state regulators on CWA matters affecting mining states
Serve as counsel to national trade association on CWA policy and regulatory matters
Advises large export terminal developers on NEPA, CWA, Section 106 and tribal consultation matters
Advise industry clients on water quality criterion development
Advise financial institutions on environmental due diligence for acquisitions
Represented public utilities, non-profit organizations, municipalities, state agencies, and Fortune 500 companies subject to energy and environmental laws, before the Federal Energy Regulatory Commission, Nuclear Regulatory Commission, and state public utility and energy commissions.
Represented owners of former bus garage and maintenance facility in Pennsylvania federal court action against national transportation company in action involving soil and groundwater contamination from the operation of petroleum underground storage tanks under several common law and statutory legal theories including claims under the Pennsylvania Storage Tank and Spill Prevention Act and the Pennsylvania Clean Streams Law. This matter settled before trial and the settlement proceeds were used to remediate the property under Pennsylvania's Act 2 Land Recycling Program.
Successfully defended white oil manufacturing facility in administrative enforcement proceeding by Pennsylvania DEP under the Pennsylvania Hazardous Sites Cleanup Act alleging that wastes from several petroleum-related manufacturing facilities caused widespread groundwater contamination (Bear Creek Area Chemical Site). The DEP accepted our evidence that waste from our client's facility did not contribute to the groundwater contamination. The DEP collected approximately $23 million in settlements from other companies and those funds were used for the construction of over 60 miles of water line to provide public water to approximately 900 residents in a two-county area. The representation also included successfully defending the client against a class action lawsuit filed on behalf of affected property owners in the Court of Common Pleas of Butler County, Pennsylvania.
Assisting Detroit-based Rocket Fiber to secure rights-of-way, comply with Michigan’s METRO Act, steer through state and federal communications regulations, and secure a uniform video franchise, among other things
Served as Special Counsel to the Commonwealth of Virginia and the Virginia Department of Environmental Quality related to a potential cost recovery action against the United States Navy
Assisted in the negotiation of an Indian water rights settlement and the Congressional passage of The Bill Williams River Water Rights Settlement Act of 2014
Served as natural resource damage litigation counsel to the Florida Department of Environmental Protection and the Florida Fish & Wildlife Conservation Commission in the Multi-District Litigation In Re: Oil Spill By the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, On April 20, 2010, MDL No. 2179, in the United States District Court for the Eastern District of Louisiana
Served for several years as an adjunct member of the corporate legal department of a leading consumer products company working closely with the corporation's environmental managers, monitoring outside litigation counsel and participating in periodic educational and training programs for plant personnel.
Represented a Fortune 100 mining company before EPA on Clean Water Act regulatory compliance and hazardous waste issues
Counseled a Fortune 100 steel company on legislative, regulatory and international climate change related developments
Advising a Fortune 100 mining company on science policy issues driving regulatory limits
Coordinated EPA's defensive litigation arising from the terrorist attacks of 9-11
Coordinated EPA's legal advice in the wake of hurricanes Katrina and Rita and participating in the government-wide Hurricane Katrina White House Legal Working Group
Represented a national water association before EPA on sewage sludge (biosolids) incineration issues
Represented a landfill operation before the EPA in a methane to energy Clean Air Act common control determination
Represented a regional association of municipal power plants before EPA and OMB on Clean Air Act boiler MACT related rulemaking
Represented a major trade association and individual companies in National Ambient Air Quality Standards rulemaking and appellate litigation
Counseled EPA on its participation on the World Trade Center Expert Technical Review Panel
Served as lead U.S. DOJ trial counsel representing EPA in multiple suits brought by environmental groups over EPA's failure to promulgate Total Maximum Daily Loads (TMDLs) in the absence of state action
Served as lead U.S. DOJ trial counsel in civil prosecutions alleging violations of the wetlands provision of the CWA
While at EPA, Region V, supervised the legal review that resulted in initial delegation of Superfund and RCRA to the states for implementation
Litigated the first case filed under EPA’s emergency response authority in the Toxic Substances Control Act, United States v. Illada Energy Company
Obtained favorable settlements of enforcement actions brought by NRC, DOE, and EPA against manufacturing and engineering clients
Prepared critical expert witnesses whose testimony for trials resulted in favorable decisions for clients in toxic tort actions
Served as lead counsel for large private wastewater operator in litigation arising out of enforcement action by the US Department of Justice against a municipality for combined sewer overflow (CSO) issues
Represented local governments and land development companies in National Pollutant Discharge Elimination System (NPDES) permitting, TMDLs, and enforcement proceedings
Securing FERC/Corps approvals for private hydropower plants, and license transfers for nuclear power plants and waste facilities from the NRC
Served as lead trial counsel for the United States defending suits brought by environmental groups against U.S. Department of Defense (DOD) facilities
Served as lead U.S. DOJ trial counsel for the United States representing EPA in challenge by the tobacco industry to EPA's landmark second-hand smoke risk assessment
Served as lead U.S. DOJ trial counsel in several high profile cases representing the U.S. Army Corps of Engineers regarding the issuance of wetlands permits under the Clean Water Act (CWA)
Served as lead trial counsel for the United States in successful defenses of two suits by major chemical companies against the DOD alleging U.S. liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for contamination from Agent Orange manufactured for the Vietnam War
Prepared amicus briefs for the U.S. Court of Appeals for the D.C. Circuit and the US Supreme Court on behalf of a national trade association in case construing a key section of the Clean Water Act
Advised a number of clients regarding liability pursuant to Section 8(e) of the TSCA for failure report to EPA a “study” alleging indicating the chemical presents an unreasonable risk
Advising a trade association concerning allegations that children and adults may be exposed to carcinogenic and other hazardous chemicals from products made in part of a recycled (post-consumer) product originally manufactured by the trade association’s members. The legal risks include federal and state regulatory liability and potential personal injury claims
Bob Strong and Sean Gallagher recently achieved a reversal in the Michigan Court of Appeals of the Michigan Public Service Commission’s denial of summary disposition on a claim that the Commission exceeded its statutory authority when it authorized the defendant regulated utility company to raise electrical rates for Clark Hill’s client, a significant North American industrial energy transporter, generator, and distributor, at its facility in Michigan’s Upper Peninsula. Arguing the settlement resolved a disputed legal issue, the Commission approved the rate increases in 2012 under guise of approval of a settlement agreement from 2009 that included a rate-increasing accounting mechanism. The Commission approved the rate increase despite a prior Court of Appeals opinion holding that the statutory authority of electric utilities did not allow for use of the accounting mechanism. Under Bob’s direction, Sean drafted the brief and handled oral argument before the Court of Appeals panel, which included the judge who authored the prior opinion. In a published opinion, the unanimous panel decided the rate increases were ultra vires based on interpretation of clear statutory language and the prior Court of Appeals decision interpreting the Commission’s authorizing statute. The Court of Appeals ordered the case remanded for further proceedings before the Commission, which are expected to involve determination of the amount of refund owed to Clark Hill’s client, likely in excess of $200,000, and potentially all of the ratepayers of the utility, which could exceed $10,000,000.
Solid and Hazardous Waste - Represented owners of former bus garage and maintenance facility in Pennsylvania federal court action against national transportation company in action involving soil and groundwater contamination from the operation of petroleum underground storage tanks under several common law and statutory legal theories including claims under the Pennsylvania Storage Tank and Spill Prevention Act and the Pennsylvania Clean Streams Law. This matter settled before trial and the settlement proceeds were used to remediate the property under Pennsylvania’s Act 2 Land Recycling Program.
Superfund - Successfully defended white oil manufacturing facility in administrative enforcement proceeding by Pennsylvania DEP under the Pennsylvania Hazardous Sites Cleanup Act alleging that wastes from several petroleum-related manufacturing facilities caused widespread groundwater contamination (Bear Creek Area Chemical Site). The DEP accepted our evidence that waste from our client’s facility did not contribute to the groundwater contamination. The DEP collected approximately $23 million in settlements from other companies and those funds were used for the construction of over 60 miles of water line to provide public water to approximately 900 residents in a two-county area. The representation also included successfully defending the client against a class action lawsuit filed on behalf of affected property owners in the Court of Common Pleas of Butler County, Pennsylvania.
Detroit-based Rocket Fiber formally launched its ultrafast optical fiber Internet service, which it says is up to 1,000 times faster than current average Internet speeds. Rick Coy was sought out by Rocket Fiber several years ago because of his extensive experience in helping institutions establish high speed fiber optic networks. Rick helped the Rocket Fiber team secure rights-of-way, comply with Michigan’s METRO Act, steer through state and federal communications regulations, and secure a uniform video franchise, among other things.
Special Environmental Counsel - Served for several years as an adjunct member of the corporate legal department of a leading consumer products company working closely with the corporation’s environmental managers, monitoring outside litigation counsel and participating in periodic educational and training programs for plant personnel.
Represented a landfill operation before the EPA in a methane to energy Clean Air Act common control determination
Represented a Fortune 100 oil & gas company before the New Mexico Environmental Department on Clean Air Act self-disclosures and compliance
Represented a Fortune 100 mining company before EPA on Clean Water Act regulatory compliance and hazardous waste issues
Counseled a Fortune 100 steel company on legislative, regulatory and international climate change related developments
On behalf of offshore wind energy companies, commented on proposed regulations of offshore facilities and obtained critical changes streamlining the process; subsequently assisted the companies in obtaining federal permits and approvals for offshore wind power projects.
As lead negotiator for primary stakeholder in development of Maryland's Nutrient Trading Policy
Lead U.S. DOJ trial counsel in several high profile cases representing the U.S. Army Corps of Engineers regarding the issuance of wetlands permits under the Clean Water Act (CWA)
Represented a former service station owner in the damages phase of an action under the Pennsylvania Storage Tank Act. Damages were limited to under 10% of the claimed damages. (Court of Common Pleas of Allegheny County, PA)
Represented a bank in connection with a credit facility, the proceeds of which were used for, among other things, the development and production of coal bed methane gas in connection with various coal bed methane gas leases entered into by the borrower. The credit facility was fully secured by blanket liens on all of the borrower's assets, including, but not limited to, leasehold mortgages with respect to the coal bed methane gas leases.
Air Pollution Control - Representation of other clients with respect to PSD enforcement activities by the United States EPA.
Represented the Pittsburgh International Airport in a federal action under the National Environmental Policy Act and the National Historic Preservation Act in which some individuals sought to prevent demolition of the old airport terminal and redevelopment of the site. Resulted in a favorable ruling by Justice Souter of the United States Supreme Court which permitted the project to proceed.
Air Pollution Control - Defended a carbon manufacturing facility against Pennsylvania DEP allegations that the facility had operated in violation of the Pennsylvania air pollution control regulations and the facility’s Title V air permit. Negotiated a consent order and agreement that included not only a substantial reduction in the proposed civil penalties, but also an agreement by the DEP to increase the VOC emissions limit contained in the facility’s Title V permit for a specific source based upon the client's position that this permit limit was calculated improperly based upon incorrect information submitted to the DEP by the former owner/permittee of the facility. Following the client's submission of a new reasonably available control technology (“RACT”) application, the DEP issued the revised RACT approval.
Regulatory Compliance Counseling - Assisted rural market telecommunications company in self-reporting violations of several environmental statutes pursuant to the United States EPA’s Self Audit and Disclosure Policy. Negotiated consent agreement which resulted in EPA’s waiver of approximately $675,000 in civil penalties, with the negotiated civil penalty being less than $10,000.
Solid and Hazardous Waste - Negotiated amended Resource Conservation and Recovery Act (“RCRA”) hazardous waste permits and/or consent orders with state agencies for addressing trichloroethylene (“TCE”) and other solvent and heavy metal contamination at sites in Mississippi and South Carolina.
Solid and Hazardous Waste - Negotiation of amount and documentation of financial assurance (e.g., performance bonds and standby trust agreements) for post-closure care at permitted RCRA sites.
Solid and Hazardous Waste - Successfully defended client in citizen suit alleging violations of several state and federal statutes including the Pennsylvania Solid Waste Management Act. Allegany Environmental Action Coalition v. Westinghouse Electric Corporation, et al.
Solid and Hazardous Waste - Successfully defended former property owner in action by current owner under the Pennsylvania Storage Tank and Spill Prevention Act. William F. Murdoch, Jr. v. Atlantic Richfield Co., et al.
Solid and Hazardous Waste - Assisted specialty resins and coatings company in responding to multiple EPA information requests and negotiated Consent Agreement and Final Order with greatly reduced penalties for alleged violations of RCRA hazardous and universal waste storage and monitoring requirements.
Transactions - Conducted environmental due diligence for client’s simultaneous acquisition of three publicly-traded consumer products companies. The combined value of the transactions was approximately $2.4 billion.
Transactions - Coordinated environmental due diligence and negotiated environmental provisions of agreement for client’s acquisition of five former food processing facilities located in an urban area for conversion into residential lofts.
Transactions - Coordinated environmental due diligence responses for $350 million private equity investment in gas exploration and production client, as well as for subsequent $4.7 billion acquisition of client.
Transactions - Performed environmental due diligence for client's acquisition of a publicly-traded logistics and refurbishment company, in an all-cash merger valued at $512.6 million.
Transactions - Performed environmental due diligence and negotiated environmental provisions of stock purchase agreement for client's $300 million acquisition of a rail equipment supplier with nine manufacturing facilities in Illinois, Ohio and Pennsylvania.
Transactions - Regularly counsel clients on the environmental provisions of acquisition and divestiture agreements.
Transactions - Performed environmental due diligence and negotiated environmental covenants and indemnity provisions, including a buyer-seller agreement with the Pennsylvania Department of Environmental Protection, for client's $35 million acquisition of a manufacturer of railroad track and signaling products.
Transactions - Negotiated environmental representations, warranties and related disclosures with respect to stock sale of steel tube and wire business with 14 facilities in four states, two Canadian provinces and England. The value of the transaction was approximately $350 million.
Transactions - Negotiated environmental representations, warranties, covenants and indemnifications with respect to client’s sale of a furniture manufacturing business with six facilities in five states. The value of the transaction was more than $70 million.
Regulatory Compliance Counseling - Coordinated environmental compliance audit program covering six facilities in five states for a metal fabrication company.
Regulatory Compliance Counseling - Assisted metal fabrication and finishing company in development of environmental management system to reduce potential environmental liabilities.
Transactions - Negotiated environmental representations, warranties, covenants and indemnifications with respect to client’s sale of a time and temperature measurement device business. The value of the transaction was approximately $6 million.
Site Remediation/Brownfield Redevelopment - Obtained closure under Pennsylvania Act 2 Special Industrial Area Standard for an approximately 65-acre site in Beaver County.
Site Remediation/Brownfield Redevelopment - Obtained closure of other contaminated sites under Pennsylvania’s Land Recycling and Remediation Standards Act (i.e., Brownfield Program).
Solid and Hazardous Waste - Provided legal assistance to numerous clients on compliance with regulatory requirements for identification, handling, storage and disposal of solid, residual and hazardous wastes.
Solid and Hazardous Waste - Defended fiberglass-reinforced plastics manufacturer with respect to EPA investigation of hazardous waste handling practices.
Superfund - Successfully represented client in federal court cost recovery action alleging that client sent hazardous substances to local landfill. District court entered summary judgment for client on basis that plaintiff failed to comply with the National Contingency Plan prior to bringing the action. The Sixth Circuit Court of Appeals affirmed the district court. Pierson Sand and Gravel, Inc. v. Pierson Township, et al.
Superfund - Representation of clients identified as potentially responsible parties (“PRPs”) at Superfund sites in numerous states.
Superfund - Obtained dismissal of French corporation from private cost recovery action under the New Jersey Spill Compensation and Control Act for lack of personal jurisdiction. Fortunato t/a R&R Realty Co. v. Napp Chemicals, Inc., et al.
Energy and Natural Resources - Advised clients on permitting issues for mining of waste coal for cogeneration facilities.
Energy and Natural Resources - Successfully defended West Virginia mining company with respect to landowner’s claims of water loss from deep mining activities
Energy and Natural Resources - Represented owner of environmentally-impacted property in oil and gas lease negotiations with oil and gas exploration company.
Energy and Natural Resources - Coordinated environmental due diligence responses for a privately-owned oil and natural gas exploration and development company based in Pennsylvania in connection with an approximately $350 million private equity investment.
Water Pollution Control - Counseled oil and gas exploration company with respect to environmental permits (e.g., stream encroachment) associated with Marcellus Shale well drilling sites in Pennsylvania.
Air Pollution Control - Numerous negotiations of administrative consent orders with the EPA and state agencies to settle alleged violations of visible and particulate matter emissions from metals melting and casting operations and other industry categories.
Site Remediation/Brownfield Redevelopment - Negotiated amended consent order for the remediation of groundwater contamination emanating from manufacturing facility in Louisiana. The plume had contaminated municipal water supply wells.
Site Remediation/Brownfield Redevelopment - Advised client on TCE and other solvent groundwater remediation at facilities located in Kansas, Tennessee and other states.
Water Pollution Control - Appeal of NPDES permit and negotiations with the South Carolina Department of Health and Environmental Control with respect to a requirement for whole effluent toxicity testing.
Water Pollution Control - Numerous negotiations of civil penalties assessed by state agencies with respect to alleged unpermitted discharges or discharges which exceeded permitted effluent limitations and related testing and testing program issues.
Water Pollution Control - Successfully defended citizens suits alleging violations of NPDES permit effluent limitations on the basis that the alleged violations had ceased prior to the filing of the citizens suit.
Transactions - Drafted and negotiated buyer-seller agreement with Pennsylvania DEP as well as environmental provisions of agreement for asset sale of a 25-acre fittings and flanges manufacturing facility located in Lawrence County.
Water Pollution Control - Successfully defended former owner of “company town” in action by local sewer authority for the recovery of a portion of the cost of a 537 Plan study required under Pennsylvania Sewage Facilities Act. Burgettstown-Smith Township Joint Sewage Authority v. Langeloth Townsite Company, 403 Pa. Super. 84 (1991).
Water Pollution Control - Representation of municipal authority with respect to updating and revising its industrial discharge pretreatment ordinance to conform to the U.S. Environmental Protection Agency’s pretreatment program.
Solid and Hazardous Waste - Appeal of DEP denial of permit modification application for expansion of fly ash disposal site.
Superfund - Participation on PRP steering, allocation and litigation committees. These Superfund sites include, but are not limited to: Thermo Chem Site, Muskegon, Michigan; Organic Chemicals, Inc. Site, Grandville, Michigan; J.C. Pennco Site, San Antonio, Texas; Metcoa Site, Pulaski, Pennsylvania; Breslube Penn Site, Coraopolis, Pennsylvania; Fisher Calo Superfund Site, Kingsbury, Indiana.
Transactions - Negotiated agreements with environmental consultants, contractors and disposal facilities for performance of remedial activities and disposal of resulting wastes.
Water Pollution Control - Appeal of NPDES permit and negotiation of consent order with the state agency resulting in the relocation of discharge outfalls to obtain less stringent water quality-based effluent limitations.
Superfund - Represented past owner/operator of manufacturing facility in Manning, South Carolina in cost recovery action by current owner in federal court. Plaintiff sought approximately $14 million in past and future damages for TCE groundwater contamination. MTD Products, Inc. v. Sunbeam Corporation
Regulatory Compliance Counseling - Coordinated environmental compliance audit program covering 21 facilities in 12 states for a leading consumer products company. Following the completion of the facility audits, developed individual facility action plans and a corporate-wide environmental compliance manual.
Regulatory Compliance Counseling - Advised client on disclosure of noncompliance with continuous release reporting requirements at 21 facilities under the United States EPA’s Self Audit and Disclosure Policy. The EPA decided not to seek any penalties with respect to the failures to report continuous releases.
Site Remediation/Brownfield Redevelopment - Negotiated Consent Order and Agreement for Special Industrial Area to obtain relief from liability under Pennsylvania’s Act 2, to allow redevelopment of 105-acre industrial site in Luzerne County.
Water Pollution Control - Negotiation of numerous National Pollutant Discharge Elimination System (“NPDES”) permits in various states for discharges from operating manufacturing facilities (e.g., metals, plastic molding, glass) and groundwater remediation sites (CERCLA sites and RCRA post-closure care sites).
Permits and Licenses - Negotiated a fifty percent reduction of the Federal Aviation Administration’s proposed civil penalty for client’s alleged violations of Department of Transportation’s Hazardous Materials Regulations.
Permits and Licenses - Developed program of institutional controls and financial assurance for termination of Nuclear Regulatory Commission (NRC) radioactive materials license under restricted use condition. Coordinated the presentation of the proposed institutional controls to the NRC and the "Site Specific Advisory Board" established under the NRC’s regulations.