Sidley’s Environmental practice group has four decades of experience helping clients comply with the federal Clean Water Act (CWA) and state/local equivalents. We provide advice on permitting and compliance, litigation and enforcement and regulatory and legislative advocacy. Our lawyers have developed deep technical knowledge of surface and groundwater statutes, including drinking water regulations, water treatment and reuse and sewage treatment issues.
Permitting and Compliance Assistance
We counsel companies on a range of permitting/licensing and compliance issues, including analyzing, preparing comments on and appealing (or defending from challenges) numerous Clean Water Act, National Pollutant Discharge Elimination System (NPDES) and pretreatment permits imposing both technology-based and water quality-based effluent limitations and Section 404 wetlands permit, as well as state-issued water quality certifications required under the CWA for federal permits or licenses.
Our permitting/licenses and compliance work includes assisting:
- A lender about the provision of financing to an entrepreneur for the acquisition and operation of paper manufacturing equipment at a former paper manufacturing mill in Tennessee.
- A private equity firm in identifying and addressing the environmental issues raised by the acquisition of a specialty chemical manufacturer in Michigan, including an evaluation of compliance with the EU’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), Proposition 65 and wastewater discharge regulations applicable to the chemicals industry.
- A major solar project in California where water rights and Endangered Species Act issues were evaluated.
- A lender about the provision of financing to an entrepreneur for the acquisition and operation of paper manufacturing equipment at a former paper manufacturing mill in Virginia.
- An international manufacturer on a range of environmental issues, including Clean Air Act permitting and compliance with water and waste regulations, for newly acquired facilities in Texas.
- One of the largest U.S. power plants in a CWA Section 316 thermal discharge variance and intake technology permit proceeding in which we helped the client obtain a final permit that did not alter the once through cooling system and incorporated suggestions for wetland restoration, fish ladders and biological research.
- A client with a number of plants on taking an adverse Second Circuit opinion on the Environmental Protection Agency (EPA) rules under CWA Section 316 to the Supreme Court and on the EPA rulemaking that followed the industry victory in the Supreme Court.
- The owner of a large chemical plant in obtaining site-specific modifications to three water quality standards.
- A large, integrated chemical manufacturing facility in Louisiana with obtaining a “Fundamentally Different Factors” variance from the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) standards of the Organic Chemicals, Plastics and Synthetic Fibers Effluent Guidelines.
- National homebuilders regarding compliance with storm water permitting requirements and the development and maintenance of effective storm water pollution prevention plans, adoption of best management practices and EPA enforcement initiatives.
- One of the nation’s largest publicly owned treatment works in reviewing and enhancing its pretreatment permitting and enforcement program.
- A major corporation engaged in the transfer of 50 acres of a former plant site to a brownfields redevelopment agency.
- A client with obtaining a site-specific rule change for a water utility discharging into the Mississippi River.
- A utility seeking site-specific relief from standards applicable to groundwater impacted by a coal ash disposal facility.
- A large integrated manufacturer on compliance with storm water requirements at remedial projects throughout the country.
- A natural gas pipeline company in asserting and defending multiple legal actions regarding CWA water quality certifications and state wetland and water permitting requirements in state and federal courts as well as before FERC.
Enforcement and Litigation
Our lawyers have a nuanced understanding of enforcement and litigation related to the CWA. We have defended numerous clients in CWA criminal and civil government enforcement matters and in citizen suits involving unpermitted discharges and other infractions, including conducting related internal investigations.
Examples of our enforcement and litigation work include representing:
- Duke Energy in connection with a federal criminal investigation over NPDES permit issues at coal ash ponds at 14 facilities as well as a state administrative enforcement action alleging violations of groundwater standards stemming from the company’s coal ash ponds.
- Tyson Foods in connection with an internal investigation into CWA compliance at a Missouri facility and a federal criminal case at another Tyson Missouri facility.
- Non-governmental organizations (NGOs) in a challenge to the West Virginia NPDES and surface mining permits for a proposed shale mine.
- The Norfolk Southern Corporation in a CWA civil enforcement suit by the U.S. DOJ/EPA in D.S.C. over a train derailment that resulted in a chlorine release. Near the end of discovery, the matter was settled favorably under a consent decree.
- Duke Energy before the Supreme Court in a case brought by South Carolina challenging water allocation on the Catawba River, where Duke operates numerous hydroelectric facilities. The parties negotiated a successful resolution to bring certainty to all water users of the Catawba River.
- Tyson Foods, Inc. in a six-month trial of environmental claims brought by the Attorney General of Oklahoma concerning claims of nutrient run-off impacts on a watershed with the Arkansas/Oklahoma border. Prior to the start of trial, the court dismissed the damages claims on the ground that the natural resources at issue belong to the Cherokee Nation pursuant to treaties with Congress, not the State of Oklahoma.
- Two chemical companies who are negotiating settlements of alleged multimedia violations at multiple facilities across the United States with the EPA. One of the cases involves alleged violations of the CAA, CWA, RCRA, CERCLA and the Emergency Planning and Community Right-to-Know Act.
- The South Florida Water Management District in conjunction with the massive federal-state undertaking to restore the Everglades National Park. Sidley advises the Water Management District on compliance with NEPA, the CWA, the Endangered Species Act and other related environmental programs that are implicated by specific Everglades improvement projects.
- ExxonMobil in connection with the rupture of the Pegasus Pipeline in Mayflower, Arkansas.
- TransCanada on the environmental issues raised by the high-profile Keystone XL Pipeline and the Gulf Coast Pipeline, formerly a part of the XL project. We successfully represented our client against efforts to secure a temporary restraining order and preliminary injunction to block the start of construction.
- Fund 8 Domestic LLC in a Clean Water Act citizen suit involving a tract of land that Fund 8 had purchased for timber production and later sold to another timber company.
- The owner of an Illinois manufacturing plant with respect to a grand jury investigation arising from an EPA criminal investigation of the plant’s compliance with the CWA and the Resource Conservation and Recovery Act.
- A client in an environmental criminal investigation pursuant to the CWA and the Resource Conservation and Recovery Act concerning a chemical spill in the Midwest.
- 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.
- A coke manufacturer in a civil CWA enforcement matter involving multiple facilities throughout the country, resolved through a multimillion dollar penalty consent decree and implementation of environmental health and safety management system, EH&S audits and multi-facility compliance audits.
- A tile manufacturer in responding to alleged water quality violations caused by heavy metals entrenched in storm water.
- A multiple-facility manufacturing company to significantly reduce proposed penalties, in part through careful analysis of economic benefits.
- A large construction firm in a nationwide enforcement action alleging violations of the storm water permitting program.
- In California, we represented the largest marine cargo container operator in North America in defending a Clean Water Act citizen enforcement action. The citizen enforcer dismissed its complaint prior to our client needing to file a responsive pleading, resulting in an extremely favorable outcome for this client. Additionally, in the last year Sidley in California has defended three other Clean Water Act citizen enforcement suits against recyclers, restaurant oil and grease processors and a rendering facility that processes meat by-products and bio-nutrients for the pet food, fertilizer and biofuels industries. Of these three actions, in one case the citizen plaintiff was convinced not to proceed at all, and dropped its claims. In the second, a very favorable settlement was reached before suit was filed. The third case, brought by a Bay Area citizen’s group, involved the 2015 General Industrial Storm water Permit in federal court in San Francisco (the Northern District of California) was settled favorably.
Regulatory and Legislative Advocacy
Our lawyers have handled numerous issues of substantial importance to water quality regulation throughout the country, including the EPA’s methodology for deriving water quality standards for protection of wildlife and enforcement of water quality-based effluent limitations. We have prepared comments on regulatory and legislative guidelines covering many areas, including metal products and machinery; organic chemicals, plastics and synthetic fibers; and pesticides.
Examples of our regulatory and legislative advocacy work include advising:
- The National Association of Manufacturers regarding the Army Corps of Engineers/EPA’s proposed regulations regarding the scope of the “Waters of the United States” under the CWA.
- Clients on Congressional efforts to reauthorize the CWA and other CWA-related matters.
- A leading California water district on CWA issues, including successful intervention on behalf of the permitting agency in a State administrative proceeding upholding a state-issued NPDES permit.
- A large manufacturing client in connection with EPA’s Great Lakes Initiative rulemaking proceeding through filing of comments and seeking judicial review of the final rule.
- A leading manufacturer in connection with EPA’s National Toxics Rule rulemaking proceeding, filing comments and seeking judicial review of the final rule.
Grants
We have assisted numerous clients in connection with the EPA’s multi-billion 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. The grants were subject to (and our lawyers were responsible for) satisfaction of numerous conditions, including:
- Adhering to extensive planning requirements, priority ordinances and industrial cost recovery provisions
- Analyzing innovative and alternative technologies
- Confirming sewer systems management (inflow/outflow and combined sewer overflow)
- Providing plans of operation
- Addressing phased and/or segmented approaches and value engineering and reserve capacity issues
- Reviewing and analyzing inter-municipal service and operation and maintenance agreements
- Determining allowable costs