Representative Matters

  • Industry Discharger. We worked with the client, a technical consultant, a state National Pollutant Discharge Elimination System (NPDES) permitting authority, and an EPA Regional Office to replace a water quality criterion default value of zero with a higher value based on more than a year of relevant data. The affected water quality based permit limit (aluminum) was subsequently recalculated and replaced with a higher, more appropriate vale. This allowed the discharger to remain in compliance with the permit while the study was undertaken and reviewed and approved by the agencies, and avoided putting resources into treatment that was unnecessary to protect water quality.
  • Industry Discharger (NPDES permit). In the first round, B&D ensured that a permit used properly promulgated TMDL numbers for TN and TP rather than the smaller legally and technically unfounded TN and TP numbers that the regional EPA tried to pull in from a draft Chesapeake Bay document and impose without a compliance schedule. Five years later, in the second round, B&D worked on a compliance plan and schedule to meet lower limits for TN and TP due to legitimate Chesapeake Bay developments and to negotiate and implement a Water Quality trading agreement between our industry discharger client and the local publicly owned treatment works (POTW) .
  • Major Pharmaceutical Company. The EPA-issued TMDL for metals incorporated multiple unsupported safety factors resulting in unnecessarily stringent waste load allocations. The B&D led technical challenge to the TMDL resulted in a three-party negotiation (including EPA, state and discharger) that produced a revised proposal that was acceptable to all parties.
  • Industry Indirect Discharger. We worked through a city POTW’s counsel and in support of a client’s local political efforts to effectuate changes in compliance dates for stringent new water quality-based limits for chloride, TDS, and sulfate. We considered a variance path and were prepared to negotiate with the state environmental agency directly but both were unnecessary.
  • Refineries. We represented two refineries, each with its own Texas Pollutant Discharge Elimination System (TPDES) permit, in negotiating data collection and permit term issues for various new water quality-based limits including lead, cyanide, and nutrients, as well as separate storm water general permit issues. We considered a variance path but did not need to pursue that once the issues were negotiated within the NPDES permit context to a satisfactory conclusion.
  • Novel CWA Citizen Suit. B&D defended a major freight railroad in the largest environmental citizen suit, by dollars of relief sought, in U.S. history. The railroad was sued by Sierra Club, Natural Resources Defense Council, and a host of local environmental groups in federal district court in Seattle. In a case of first impression, Plaintiffs sought to limit the rail transportation of coal by seeking CWA penalties for alleged fugitive coal dust from all rail cars and trains. The statutory maximum penalty under the CWA for the allegations in the complaints would have been in excess of $4 trillion. The trial began but a settlement was reached roughly one week later for $1 million, a non-binding coal car study, and no admission of liability.
  • Advising several municipal water systems across the US on EPA’s “wet weather” enforcement initiative and on the upgrading and development of municipal water infrastructure.  Most recently, we assisted the San Antonio Water System to negotiate a $1.1 billion Clean Water Act Consent Decree.
  • Routinely counseling direct discharge clients regarding the many ways, such as water quality trading and non-traditional permitting mechanisms,  in which they can include agricultural and urban stormwater runoff nonpoint sources in discussions and allocations under the TMDL and watershed-based permitting frameworks in order to distribute the burden of ensuring required water quality among all contributors.
  • Working with industry, water infrastructure managers and developers to obtain approval of new land uses that optimize both water supply and water runoff quality.
  • Counseling clients on strategic planning for water use and waste discharge permits by assessing current and future water resources, permit opportunities and limitations, competing and complementary uses, and water quality constraints.
  • Conferring with the agricultural chemical industry and representing individual producers of agricultural chemicals in regulatory arenas where states seek to impose CWA-based permits on the application or any subsequent environmental transport of registered pesticides or their breakdown products.
  • Representing the aquatic recreation industry in proceedings designed to establish the proper means of assessing and addressing any in-stream impacts relating to the use of federally-registered pesticides in anti-fouling bottom paints.