Representative Matters

Environmental Regulatory Compliance and Project Development

A team of B&D attorneys, led by retired firm Chairman Benjamin Wilson, who was named as Deputy Monitor for Emissions and Environmental by the lead Monitor (former Deputy U.S. Attorney General Larry Thompson), played a leading role assisting Volkswagen to address the environmental compliance requirements arising from its 2017 criminal Plea Agreement in the “Clean Diesel” matter. One of the most important mandates of the $2.8B Plea Agreement required that the company implement policies and procedures designed to detect and prevent violations of environmental laws. Through the work of the Monitorship, B&D attorneys made specific recommendations to assist the company’s environmental compliance and management efforts, including in helping VW implement a revised environmental management system suitable for worldwide operations. As the company has acknowledged, B&D attorneys’ guidance was important to it evolving and improving its environmental compliance efforts.
B&D successfully resolved a major environmental criminal investigation of a global lens manufacturer that surrounded unpermitted wastewater discharges into sewers. By immediately responding to a search warrant, conducting a thorough and timely internal investigation, and overseeing expeditious remediation and corrective measures, the company was able to avoid all felony charges and negotiate a misdemeanor resolution with a civil fine.
We advise clients on all aspects of the Emergency Planning and Community Right-to-Know Act (EPCRA), including facility emergency planning requirements, release reporting requirements, chemical inventory reporting, and Toxic Release Inventory (TRI) reporting. Our work includes developing reporting and compliance protocols for companies, advising clients on completion of Section 311 submissions, Tier II reports and Form R submissions, successfully defending federal enforcement actions, and assisting with voluntary disclosures of past reporting violations under the statute.
FORTUNE^® 500 companies regularly engage B&D to assess the effectiveness of their corporate compliance programs based on the criteria and guidance from the Federal Sentencing Guidelines, other government policies, and industry best practices. These compliance assessments include a comprehensive review (and recommendations) of program components, policies and procedures, corporate compliance culture, leadership and “tone at the top,” hotline and investigative responses, risk assessments, training, documentation, and continued program improvements
B&D serves as common counsel to the Oil & Gas Endangered Species Act Coalition. The Coalition is comprised of eight upstream and midstream oil and natural gas companies that are cooperating to develop a broad 50-year plan covering multiple states under which they can develop pipelines, well pads, and related infrastructure in compliance with the Endangered Species Act (ESA). With the recent and expected future ESA listings of several wildlife species, the oil and gas industry currently faces debilitating regulatory restrictions that limit critical energy projects from being developed during much of the year. The goal of the Coalition’s habitat conservation plan is to provide an alternative to those restrictions by allowing more flexibility on the timing of project development.
We serve as lead environmental counsel to the Union Station Redevelopment Corporation (USRC) to assist with the National Environmental Policy Act (NEPA) review and related historic preservation compliance for the Union Station 2nd Century Project. Washington, DC’s Union Station is a nationally known rail station, the second busiest in the Northeast corridor and a regional hub with commuter rail travel now exceeding intercity passenger travel on a daily basis.
Supported by a team of B&D lawyers, B&D's retired firm Chairman Benjamin Wilson served as the Court-Appointed Monitor to monitor the implementation of a criminal plea agreement by Duke Energy and related entities concerning a major coal ash spill and the company’s plans to clean up coal ash ponds at over a dozen other sites in several states. The B&D team oversaw Duke Energy’s development of a national and statewide coal ash compliance plan and implementation of that plan for five years, oversaw adjudication of drinking water contamination claims for at least 26 municipalities, and monitored the closure of numerous coal ash basins containing more than 20 million tons of coal ash. The estimated cost of the cleanup/ash basin closure was $3.4 billion. The civil penalties in the case totaled $102 million.
We serve as General Counsel for GoMentum Station, Inc., the largest autonomous and connected vehicle test track in the nation, and advise on a multitude of issues impacting the testing and deployment of autonomous and connected vehicles including federal and state legislation, the need for specific legislative changes (such as safety standards), and advice on liability, land use, privacy, and deployment/operational issues.
We regularly conduct evaluations of the global environmental compliance and environmental management programs of FORTUNE® 50 companies from industries including but not limited to manufacturing, energy, and pharmaceuticals. In one engagement, our evaluation encompassed more than 130 facilities located in almost 50 countries. We provided detailed findings and recommendations covering activities at the parent and subsidiary levels and helped the company implement the recommendations. Our review included detailed regulatory compliance assessments at 25 representative facilities in numerous countries.
We serve as co-counsel to a Texas water district to advise on federal issues arising under NEPA and Section 404 of the Clean Water Act (CWA) in conjunction with the district’s application to the U.S. Army Corps of Engineers for a CWA 404 permit to develop a 16,000-acre drinking water reservoir. If permitted, the project would be the first new reservoir in Texas in nearly 30 years. In addition, the requested CWA 404 permit would be one of the largest in the last 25 years – authorizing the inundation of over 5,800 acres of wetlands and 124 miles of streams and requiring nearly 21,000 acres of land to offset those impacts.
Among other air regulatory matters, we defend large chemical manufacturing clients in major enforcement matters relating to their flaring operations practices brought as part of the U.S. Environmental Protection Agency’s (EPA) national flaring enforcement initiative under the Clean Air Act (CAA) against the petroleum refining and chemical sectors. The government seeks up to $2 billion, collectively, in new equipment, monitoring, and fines and penalties.
We are assisting a chemical company with multiple offsite sediment issues at a major facility in the Calcasieu Estuary in Lake Charles, Louisiana, including a provision of strategic advice, negotiation of a cooperative assessment agreement with the relevant natural resource trustees, and negotiation of a resolution of potential natural resource damages (NRD) claims.
We represented a leading steel producer in settlement negotiations among the natural resource trustees, EPA, and the relevant companies to resolve state and federal NRD claims and potential EPA and state response action claims arising from contaminated sediments in the Grand Calumet River and Indiana Harbor Ship Channel.
We are assisting a multinational company in the oil and gas sector to assess the company’s entire product portfolio against chemical registration and related product regulatory requirements in multiple jurisdictions globally, including the U.S., the European Union, China, Canada, Brazil, and Australia, among others. We also are assisting this company with the development of a chemical compliance management system using the ISO 14001 EMS framework.
We represent and advise the owner and developer of a 672-acre property in Staten Island, New York, which is the largest privately owned undeveloped parcel in New York City. The property is a former major oil storage facility and is the subject of a consent order governing the site’s remediation and the preservation of wetlands on the site. We are advising the client on matters relating to environmental impact review of potential development proposals, construction of rail and road transportation corridors and facilities, wetlands permitting and compliance, and management of materials under beneficial use determinations.

Environmental Litigation

B&D defended in the U.S. Court of Appeals for the 10th Circuit the permitting for a $2 billion national intermodal facility in Gardner, Kansas against environmental group challenges under NEPA and Section 404 of the CWA.
We defended claims that air-borne coal dust from train cars provided a basis for a claim under the Resource Conservation and Recovery Act (RCRA), which typically applies to surface and subsurface contamination, rather than airborne releases, which are typically handled under the CAA (settled during trial).
B&D secured summary judgment on behalf of the State of North Dakota in litigation brought by the Province of Manitoba and the State of Missouri under NEPA. B&D is currently defending an appeal in the U.S. Court of Appeals for the DC Circuit.
As part of the recent wave of emerging contaminants litigation, we represent a major oil company in strict products liability and state tort claims brought by a county water authority against multiple parties in federal court in New York. The authority seeks to recover costs to treat its drinking water wells that are allegedly contaminated with 1,4-dioxane.
B&D serves as National Counsel to a petroleum refiner and marketer in on-going product liability litigation related to the gasoline additive MTBE and its alleged prevalence as a groundwater contaminant. The MTBE litigation is likely the largest collection of groundwater contamination cases in the U.S. The firm has played a significant role in developing strategy and handling key issues on behalf of the entire industry.
B&D secured dismissal of a path-breaking citizen suit filed against a major oil and gas company in federal district court in Oklahoma. The Sierra Club’s lawsuit suit under RCRA alleged that injection of oil and gas production wastewater in underground wells by oil and gas companies is causing earthquakes that endanger the public.
Following a two-week bench trial prosecuted by B&D, the Tulare County, CA, the superior court struck down a voter initiative passed in 2006 in Kern County, CA, that banned the land application of biosolids to a 4,700-acre farm in the county owned by the City of Los Angeles. B&D previously secured a preliminary injunction against the ban, affirmed on an interlocutory appeal, which allowed the farm to continue to use biosolids to grow crops. In the trial, the firm presented numerous fact witnesses and scientific experts to establish the environmental benefits of applying biosolids to farmland.
B&D successfully defended a major industrial company in a six-week federal jury trial in Boston concerning PCB contamination of Mother Brook, a river in the Hyde Park area of Boston. The jury returned a verdict finding that our client had no liability and no share in an equitable allocation for the costs of cleaning up the contamination. B&D is currently defending appeals of this verdict in the U.S. Court of Appeals for the First Circuit.
B&D is defending a major chemical company in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action by an owner of a chemical manufacturing facility seeking to recover costs incurred to clean up hazardous substances allegedly present at the site. The matter involves novel issues of law regarding CERCLA statutes of limitations. It also encompasses issues related to the National Contingency Plan (NCP) and complex considerations relating to the equitable allocation of cleanup costs among potentially responsible parties.
B&D secured a unanimous ruling from the Supreme Court of Pennsylvania that has national influence in deterring tort claims. Gilbert v. Synagro was a mass tort in which 34 plaintiffs sought millions of dollars in damages for nuisance, negligence, and trespass for the land application of biosolids (treated sewage sludge) on a farm near plaintiffs’ homes. The court held that land application of biosolids is an agricultural activity shielded from tort claims by the statute of repose in the Pennsylvania Right to Farm Act. The court also ruled that judges, not juries, should determine as a matter of law whether a statute of repose applies to bar a tort claim.
B&D successfully challenged aircraft noise regulations on reasonableness and federal preemption grounds and successfully defended takings and nuisance actions related to aircraft operations.