Our Practice

Environmental Regulation


Sidley's Environmental group represents a broad spectrum of clients concerning all significant federal environmental regulatory programs. We have assisted clients in obtaining and renewing permits, responding to and maintaining permit challenges, handling permit appeals, developing comments on proposed rulemakings and legislation, challenging proposed rules, developing and implementing compliance strategies and protocols, responding to spills, implementing remedial measures/corrective action, conducting internal investigations, defending and resolving civil and criminal enforcement actions brought by governmental authorities and private parties, and engaging in private party litigation (e.g., indemnification disputes). Our substantive areas of regulatory experience include:

Clean Air Act

Sidley has extensive Clean Air Act (CAA) experience. Our clients call on us for everything from routine compliance advice to handling large, complex enforcement cases. We have defended our clients against federal and state governmental and citizen suit enforcement actions, and assisted them in rulemaking proceedings and in obtaining permits with advantageous conditions. We also have developed and implemented compliance programs and tools to ensure compliance with the many requirements of the CAA. Examples of recent representations include:

Litigation 

  • Successfully represented AEP and Cinergy (now Duke Energy) in obtaining dismissal of a high-profile climate change lawsuit brought by eight states in federal district court. 
  • Defending AEP, Cinergy and another utility company against New Source Review (NSR) claims. The lawsuits by USEPA, the Northeast states and environmental groups target a number of utilities for alleged violations of Prevention of Significant Deterioration (PSD) and New Source Performance Standards (NSPS) requirements involving numerous coal-fired electric generating facilities. 
  • Defending a number of non-electric utility companies that have been targeted by USEPA's NSR Enforcement Initiative. Our advice has guided clients through the initial inspections and Section 114 response stages, discovery, litigation strategy, all phases of litigation (including remedy discovery) and settlement negotiations.
  • Defending a number of non-electric utility companies that have been targeted by EPA's NSR Enforcement Initiative. Our advice has guided clients through the initial inspections and 114 Response stages, discovery, litigation strategy, all phases of litigation (including appellate matters) and settlement negotiations. 
  • Defending a petroleum company against claims that it violated the Benzene Waste Operations NESHAP. 
  • Defending a medical products manufacturer against allegations of VOC SIP non-compliance where the state alleged that the source may have been the sole cause of the area being designated non-attainment. This case was resolved with a negotiated penalty millions of dollars less than the state's demands and included supplemental environmental projects proposed by the company.

Permitting and Counseling 

  • Assisting several major industrial companies in the chemical, petroleum, cement and general manufacturing industries to develop and implement their multi-facility Title V operating permit programs. 
  • Assisting the largest North American Portland Cement manufacturer develop and implement a NESHAP/MACT compliance program.
  • Assisting a client in obtaining a PSD permit for a new major greenfield steel mill. Sidley provided advice on permit negotiating strategies as well as legal and practical advice relating to the complex modeling analyses required for PSD permit applications and to the control technology selection issues, including USEPA's top-down BACT policy. 
  • Assisting an alternative energy supplier in identifying and developing plans to comply with environmental requirements, including air permitting requirements, applicable to the construction and operation of district cooling plants to serve the downtown area of a large city. 
  • Assisting a client in obtaining revised permits at a number of facilities reflecting increased emissions based on updated source test data that differs from AP-42 by a wide margin.

Clean Water Act

Sidley’s Environmental group has represented clients since 1972 in matters under the federal Clean Water Act (CWA) and state equivalents. This work has included permitting and compliance assistance and regulatory and legislative advocacy.

Litigation

We regularly defend clients in administrative, civil and criminal actions alleging violations of the Clean Water Act (CWA) brought by USEPA, state governments and citizens. Representative cases include: 

  • Representing a utility company on issues relating to Supreme Court review of the Riverkeeper II case on Section 316(b) of the CWA, on the application of “best professional judgment” and the rulemaking which will follow the Riverkeeper II opinion. 
  • Defended a client in a citizen suit claiming that the combined discharge from six generating stations caused violations of thermal water quality standards. The suit was resolved favorably - no penalties, and the utility was granted a variance from the standards. 
  • Represented the owner of six large, open-yard facilities against allegations that it violated provisions in its NPDES permit requiring surface water management and analysis and control of storm water runoff. The case was resolved for a penalty significantly below the government demand, largely through the use of several innovative supplemental environmental projects. 
  • Defended a coke manufacturer in a civil CWA enforcement matter involving multiple facilities throughout country, ultimately resolved through multimillion dollar penalty consent decree and implementation of environmental health and safety management system, EH&S audits and multi-facility compliance audits. The matter also involved submission of a voluntary disclosure under USEPA’s audit disclosure policy, a criminal plea agreement regarding one facility in Alabama and negotiation of a compliance agreement with USEPA’s Suspension and Debarment Office. 
  • Represented the owner of six large, open-yard facilities against allegations that it violated provisions in its NPDES permit requiring surface water management and analysis and control of storm water runoff. The case was resolved for a penalty significantly below the government demand, largely through the use of several innovative supplemental environmental projects. 
  • Assisted a tile manufacturer in responding to alleged water quality violations caused by heavy metals entrained in storm water. The case was resolved by eliminating all storm water discharges to surface water and by a modest penalty with no economic benefit component. 
  • Defended a citizen suit alleging pretreatment violations at a large manufacturing plant. We were able to resolve the suit through an agreement to conduct a thorough analysis of the facility’s environmental management system to ensure that the waste streams could be controlled efficiently and managed to assure permit compliance.

Permitting and Counseling 

  • Represented one of the largest U.S. power plants in a CWA Section 316 thermal discharge variance and intake technology permit proceeding. The permitting authority originally proposed a permit requiring the facility to install a closed loop cooling system at a cost of several hundred million dollars. Directing a team of professionals, Sidley helped the client obtain a final permit which did not alter the once-through cooling system and incorporated requirements for wetland restoration, fish ladders and biological research (options the company itself had proposed). 
  • Analyzing, preparing comments on and appealing numerous NPDES and pretreatment permits imposing both technology-based and water quality-based effluent limitations. Issues have included: the need for “tiered” limits due to production and flow variability; proper development of “reasonable potential to exceed” analysis; calculation of appropriate limits using the combined wastestream formula; application of state “narrative standards” to derive numeric water quality standards; inclusion of limits reflecting intake water pollutants; Whole Effluent Toxicity permit limitations. 
  • Assisted owner of large chemical plant in obtaining site-specific modifications to three water quality standards. We successfully argued that existing water quality standards were unnecessary to protect the “general use” of the receiving water. We were also successful in persuading the agency that the technical and economic infeasibility of attaining the existing standards outweighed any environmental harm resulting from a relaxed standard. 
  • Obtained a “Fundamentally Different Factors” variance from the BOD and TSS standards of the Organic Chemicals, Plastics and Synthetic Fibers Effluent Guidelines for large, integrated chemical manufacturing facility in Louisiana. This matter involved multiple technical submissions to and meetings with EPA. The variance resulted in annual savings of $6 million. 
  • Represented a major corporation engaged in the transfer of 50 acres of a former plant site to a Brownfields redevelopment agency. As part of the transfer process, we have negotiated the terms and conditions for transferring NPDES permit responsibilities to the redevelopment agency (including provisions addressing indemnifications and insurance requirements). We have also assisted the client in the formulation of detailed comments in response to the federal/state draft permit, focusing on stormwater discharges. 
  • We have represented and advised clients in numerous matters involving the jurisdictional limits of the CWA for purposes of permitting under the NPDES and U.S. Army Corps of Engineers dredge and fill programs.

Grants

We have assisted numerous clients in connection with EPA’s multibillion dollar grant program for reconstruction and upgrading of municipal wastewater treatment plants. We represented major developers, sanitary districts and municipalities in their efforts to obtain and implement grants under this program.

Waste Management (Resource Conservation & Recovery Act)

Sidley advises clients on every aspect of solid and hazardous waste management, including: 

  • Waste identification and classification, including issues such as sampling and analytical methods and the complex rules regarding reuse, reclamation and recycling. 
  • Storage. 
  • Transportation, including manifesting and DOT requirements, and the transnational movement of recyclables, solid and hazardous waste (including the Basel Convention and RCRA’s import/export requirements). 
  • Disposal. 
  • Permitting (disposal and corrective action), including representing clients in administrative and judicial challenges to permit conditions.

We have helped clients design, execute and audit waste management programs aimed at achieving compliance with RCRA and also providing other benefits, such as recycling and pollution prevention.

In addition, we have represented clients in many of the major RCRA rulemakings (including the various rulemakings implementing the land disposal restrictions, and the corrective action, CAMU and HWIR rulemakings). This work has included extensive comment writing and participation in several appellate challenges to RCRA rulemakings.

Sidley has also represented clients in many administrative, civil and criminal enforcement cases involving a wide range of waste issues. These have frequently arisen in complex multimedia contexts involving both Federal and State enforcement and regulatory authorities.

Chemical Regulation (Toxic Substances/Federal Insecticide, Fungicide And Rodenticide Act)

TSCA is the primary chemical regulatory regime in the U.S., governing how new chemicals are brought into the market, whether and how their use is regulated and establishing a number of reporting and data collection requirements. Sidley lawyers assist clients on a full range of TSCA matters, including: 

  • Premanufacture review (PMN) for new chemicals as well as other options available for new chemicals, such low-volume and test marketing exemptions. 
  • TSCA Section 4 test rules, as well as voluntary initiatives such as the high production volume testing program. 
  • TSCA Section 5 significant new use orders and rules. 
  • Information collection and reporting under Section 8 of TSCA, including allegations of adverse effects, reporting substantial risk information and submitting human health studies. 
  • Chemical import certification and chemical export notifications.

This work has been done in the contexts of compliance counseling, evaluating and developing chemical management systems, conducting audits and defending clients against allegations by EPA that TSCA has been violated. We have also assisted companies navigate the boundaries between TSCA and other chemical management statutes, including the Federal Food, Drug and Cosmetics Act administered by the FDA.

Sidley also advises clients on international chemical regulation issues, including the Stockholm Convention on Persistent Organic Pollutants (POPs) and compliance with the EU’s REACH chemical legislation.

Sidley’s legislative work on chemical regulation issues has included initiatives to amend TSCA and FIFRA to ratify the Stockholm Convention on POPs and various legislative efforts to enhance chemical security.

Sidley’s experience with TSCA extends to PCBs. Sidley represents clients in several of the major PCB cleanup sites in the U.S., has defended clients in enforcement cases involving allegations of the illegal disposal, use or transportation of PCBs and advises clients on compliance with the complex PCB regulations (including remediation, decontamination, use of PCB-contaminated buildings and PCB-containing products and negotiating with EPA risk-based alternative solutions to the default regulatory requirements). Sidley has also participated in numerous PCB rulemakings and has led or participated in several successful appellate challenges to EPA’s PCB regulations.

Sidley also assists clients on a number of FIFRA issues, including pesticide registration, labeling, financial responsibility for data-sharing and importation.

Reporting and Communication

A central component of environmental regulation is collecting and providing information to regulators, first responders, employees and the public about the storage, use and release of chemicals. Sidley assists clients with regulatory and public notification requirements regarding chemicals in a number of other contexts, including: 

  • Chemical spill and release reporting under Superfund (including EPCRA), the Clean Water Act, Oil Pollution Prevention Act, the Clean Air Act and USDOT’s hazardous materials transportation regulations, including assisting companies in making reporting decisions and defending companies against allegations that they failed to report or submitted inaccurate or untimely reports. 
  • Federal and State Community Right-To-Know requirements, including submitting Toxics Release Inventories and Tier II reports. 
  • Employee hazard communication, including advice regarding MSDSs. 
  • Reporting “substantial risk” information under Section 8(e) of TSCA. 
  • Consumer Product Safety Commission. Sidley lawyers advise consumer product manufacturers on CPSC notification and product recall issues.

Hazardous Materials Transportation

Sidley’s Environmental group assists clients on a broad range of compliance, enforcement and training issues concerning the transportation of hazardous materials and dangerous goods both domestically and internationally. Selected representations include: 

  • Counseling clients regarding compliance with USDOT’s hazardous materials regulations, ICAO’s Technical Instructions for the Safe Transport of Dangerous Goods, the IATA’s Dangerous Goods Regulations, the IMG’s Dangerous Goods Code and the Basel Convention. 
  • Advising clients on implementation of USDOT’s training requirements. 
  • Representing clients in enforcement actions brought by federal authorities for alleged violations of domestic and international hazardous materials/dangerous goods transportation requirements. 
  • Advising clients in responding to and remediating spills of hazardous materials during transportation (including reporting).

Proposition 65

Our Los Angeles office advises clients on compliance with Proposition 65 labeling and notification requirements and defending clients against state and private enforcement actions.

Our Proposition 65 practice focuses on practical, workable solutions. We counsel clients on compliance with Proposition 65’s warning obligations and also defend recipients of 60 day notice letters. We have advised a wide variety of businesses on whether warning duties were triggered by use of their consumer products. We also have advised clients as to whether warning duties apply to exposures in residential or commercial buildings that they own or occupy. And we have assisted purchasers in identifying and evaluating Proposition 65 liabilities and risks during due diligence and in creating post-acquisition compliance programs.

Training

We regularly lead innovative training courses developed by our lawyers (and sometimes outside consultants) that provide the “nuts and bolts” of various USEPA regulatory programs and other federal and state programs that impact the businesses of our clients. For example, we have provided training to both management and employees on environmental management systems, various CAA programs, financial disclosure of environmental liabilities and related matters and general updates on significant developments in environmental law. With respect to water issues, we regularly provide introductory and advanced training courses that cover not only the fundamentals of water pollution regulation, but also more complex subjects such as water quality-based permitting, whole effluent toxicity testing, derivation of POTW local limits, advanced wastewater treatment and source reduction/recycling strategies. All of our training modules are developed to meet the specific needs of our clients.

Sidley strives to provide training to its clients in the most cost-effective manner. The training can be provided in person or through webinars or conference calls, depending on the number of individuals to be trained and the complexity of the subject matter.

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