Environmental Enforcement, Negotiation, and Litigation

A critical and ongoing part of Don’s representation is his environmental enforcement, negotiation, and litigation practice. In recent years, Don has defended clients in enforcement matters including:

• A CAA enforcement case where the United States Environmental Protection Agency (EPA) headquarters and EPA Regions 3 and 5 have alleged nonattainment new source review and minor source permitting violations in the natural gas industry.
• A CAA flaring case brought by EPA Region 6 in the oil and gas industry.
• An Emergency Planning and Community Right to Know (EPCRA) and RCRA release/spill case in EPA Region 5 in the oil industry.
• Multiple EPCRA release and reporting cases in a number of EPA Regions for numerous clients.
• A Clean Water Act (CWA) and RCRA Section 7003 imminent and substantial endangerment case brought by EPA Region 9 in the waste management industry.
• A RCRA Subtitle I underground storage tanks case in EPA Region 2 in the downstream oil industry.

Don also represents clients in EPA and “state equivalent” Comprehensive Environmental Response Compensation and Liability (CERCLA or “Superfund”) actions for clients in the mineral processing, oil and gas, pharmaceutical, printing, and other industries. This representation, in scores of cases across the country, has ranged from allocation battles to the resolution of complex remedial issues, at sites with hundreds of potentially responsible parties to single party sites. Don also represents clients in natural resource damages (NRD) cases and in claims against the U.S. government and has performed a number of internal investigations in response to threatened government environmental enforcement.

Counseling, Rulemaking and Appellate Litigation

Don provides daily counseling on challenges involving hazardous and solid waste and related recycling operations, medical, sharps and infectious waste disposal, water discharges, air emissions, Drug Enforcement Agency compliant disposal of controlled substances, Department of Transportation transport of hazardous materials, and other regulatory issues. He has been heavily involved for many years in counseling mining and mineral processing industry clients with regard to the RCRA regulatory definition of solid waste and the Bevill Amendment. He also represents clients with regard to a range of RCRA and other rulemakings before EPA.

Don has advised many companies and successfully negotiated with private parties and states and federal entities, with regard to the full range of regulatory and remediation issues associated with legacy contamination sites and contaminated properties, including waste management, notification, and options for cleanup. He has negotiated “guaranteed fixed price” remediation approaches on brownfields properties. Additionally, he counsels clients on the pros and cons of “voluntary disclosures” under federal and state programs.

In his appellate litigation practice, Don has represented the National Mining Association (“NMA”) (among other clients) for thirty years. He recently represented the NMA as intervenor-respondent in litigation involving EPA’s 2015 regulatory definition of solid waste, presenting a successful oral argument against the environmentalists challenge to EPA’s decision not to expand regulation to 32 existing RCRA regulatory exclusions. American Petroleum Institute v. EPA, No. 09-1038 (D.C.Cir. July 7, 2017). For many years, he has been lead counsel in numerous mining industry regulatory advocacy and administrative litigation challenges, particularly in the RCRA context. See Appalachian Voices v. McCarthy,989 F.Supp.2d 30 (D.C.D.C. 2013).) (the U.S. District Court for the District of Columbia agreed with NMA and dismissed environmental plaintiffs’ claims that RCRA Section 2002 (b) required review of Bevill Amendment regulatory provisions and the RCRA “toxicity characteristic” every three years); Association of Battery Recyclers v. U.S. Environemental Protection Agency, 208 F. 3d. 1047 (D.C.Cir. 2000) (D.C. Circuit struck down EPA’s unlawful expansion of its RCRA regulatory definition of solid waste).

Environmental Representation in Mergers and Acquisitions

Don represents clients in multi-billion dollar international deals in the pharmaceutical and natural resources industry, among others, with regard to the four potential environmental elements of major mergers and acquisitions:

• Environmental due diligence, including due diligence on product safety and product import/export components related to environmental and health concerns.
• Negotiation and drafting of environmental representation and warranties and indemnities, and related provisions allocating environmental and related liabilities, in stock and asset purchase agreements and related documents.
• Environmental permit transfers.
• Post-transfer environmental compliance.

For such representation, Don typically partners with deal counsel, handling the environmental and related issues and functioning as an integral part of the internal and external deal team.