Environmental

Site Remediation

• Experience addressing vapor intrusion and PFAS remedial action requirements.
• Assisted on incident responses involving large-scale offsite releases of hazardous substances into communities.
• Led the negotiation of favorable terms, including remedial investigation, design, construction, and operation and maintenance agency; allocation of cost responsibility; recognition of orphan shares; obtaining funding from agency special accounts; natural resource damages; institutional controls; and bankruptcy issues.
• Drafted and managed numerous, complex multiparty contracts for site remedial work, covering multimillion dollar design, construction, and operation and maintenance efforts.
• Organized consortiums of community, state, and federal stakeholders to agree upon a remedy that affords productive reuse of land.

Regulatory Compliance

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 and assessment of facility operations and permitting needs, the development and negotiation of permits and consent orders, and compliance and penalty issues arising under permit requirements. We were lead counsel 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 and assessment of facility operations and permitting needs, the development and negotiation of permits and consent orders, and compliance and 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 and 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 (USTs)

• We have significant experience representing oil industry clients on regulatory compliance, release response, and enforcement matters concerning USTs. Our work spans multiple sites in several states, and it has included installation, closure, sale and lease, release reporting, site investigation and remediation, access to off-site and former properties, fines and 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.

Chemical Use and 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 (RSL) 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.

Litigation

• 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 and 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.
• Currently defending two PFAS cases in Michigan state courts and two federal court cases in New York and New Jersey involving CERCLA liability for major surface water cleanups.

Transactions

• Represented a Tier 1 auto supplier client in the sale of a large technical R&D center in Michigan with petroleum product impacts due to decades of underground storage tank and engine testing operations.
• Represented a private developer in the sale of a mixed use redevelopment of a large, multi-parcel property in Michigan with chlorinated solvent contamination due to prior commercial and light industrial uses.
• Represented a municipal client in a brownfield redevelopment authority’s acquisition from the Michigan Land Bank of a large, contaminated, former industrial property in Michigan, including ongoing negotiations to develop a hold harmless agreement with U.S. EPA, and plans for future commercial and recreational use.
• Represented a turbine engine manufacturer in the acquisition of two large, contaminated parcels in Michigan (previously operated for decades by an automotive manufacturer), including extensive due diligence and assessments and submissions to comply with cleanup liability exemption and due care requirements.
• Represented a Washington, D.C. based developer in the purchase and leasing of a former oil refinery property with respect to a baseline environmental assessment, release of claims, indemnity for environmental liabilities, and lease provisions protecting client as lessor.
• Represented a metal fabrication company in the sale of their manufacturing facility in Wisconsin. The buyer was highly concerned about the environmental condition of the property and we negotiated complex provisions governing the rights and duties of the parties with regard to subsurface environmental testing conducted by buyer after closing.
• Represented a financial services client in a commercial loan agreement environmental indemnity with respect to the negotiation for the lender environmental indemnities, warranties, and covenants protecting lender against environmental liabilities arising out of the historic condition and future uses by borrower of the property.
• Represented multiple owners, buyers, sellers, capital markets lenders, and banks in many transactions involving retail, mixed use commercial and office, manufacturing plants, auto rental facilities, dry cleaners, shopping centers, chain restaurants, and other properties; engagements included vetting and analysis of environmental issues and planning of Phase I and Phase II environmental site assessments, conducting “all appropriate inquiries” review, environmental audits, and negotiation of environmental indemnification terms and insurance policies.
• Represented a property owner of a major office facility on mold remediation and business interruption issues after Hurricane Katrina. Negotiated an agreement with the property insurer to pay for an indoor air quality evaluation and remediation as needed in return for reduction in time element coverage payments.
• Represented a capital markets lender on insurance issues relating to creation and operation of an owner controlled insurance program on a beachfront hotel project in California and previously on other projects in multiple jurisdictions.