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Environmental Regulatory and EnforcementPRINT PAGE

Mowrey Meezan Coddington Cloud LLP (M2C2) has bench strength in environmental permitting, regulatory compliance, and enforcement matters.  M2C2 is uniquely equipped to address clients’ issues regarding all environmental media or products regulated by the U.S. Environmental Protection Agency (e.g., pesticides and new chemicals).  Our public policy representations put us at the forefront of challenging issues such as climate change, carbon management, and pesticide defense. 

Air, Land, Water & Waste Permitting, Compliance and Enforcement

Companies doing business today face a gauntlet of ever-changing regulatory requirements and litigation risks related to the environmental impacts of their operations and products.  Industrial operations face permitting challenges, product composition restrictions, and limits on the types of industrial byproducts that may be discarded or reused.  These requirements, and others like them, arise under international, federal, regional and state law and impact all environmental media (air, water and soil, for example).

M2C2 lawyers routinely handle permits for facility construction and operation, defends clients in agency enforcement actions, negotiates consent decrees, counsels clients on the design and implementation of corporate environmental compliance programs, guides clients through the perils of voluntary disclosure to regulatory agencies, and counsels clients on complex regulatory requirements for the construction and operation of their facilities. 

One of the significant issues facing clients today is management of carbon emissions.  To that end, M2C2 provides clients with a full range of services under the Clean Air Act and other air quality laws, including representation in rulemakings and administrative proceedings, new and existing source permitting and compliance counseling, appellate litigation, enforcement defense, and business transactions.  We have specific experience in matters pertaining to utility emissions, clean coal, carbon capture and storage, and vehicle emissions..

M2C2 is the recognized leader on these and related issues.  For example, our lawyers negotiated for business and industry on the provisions and rules of the Georgia Hazardous Site Response Act, and we have been at the forefront in recent efforts by business and industry to obtain legislation for and negotiate the operational structure for Georgia’s innovative Voluntary Remediation Program.  Nationally, we are doing groundbreaking work related to clean coal and carbon capture and storage.

Representative Matters 

  • Handled simultaneous defense of enforcement investigations by the U.S. Environmental Protection Agency, the U.S. Department of Transportation, the U.S. Agency for Toxic Substances and Disease Registry, the Georgia Environmental Protection Division, the Alabama Department of Environmental Management, and the Georgia Department of Health, along with a major private class action, concerning a pesticide release to the air allegedly exposing population within a 200 square mile area.  Obtained favorable resolution of enforcement actions and settlement of class action.
  • Defended largest municipality in Southeast and obtained favorable resolutions in administrative enforcement actions involving the municipality’s landfills and water reclamation facilities. 
  • Counseled Fortune 50 worldwide transportation and logistics company on dozens of regulatory compliance issues arising in dozens of states and numerous U.S. EPA Regions.
  • Represented the American Automotive Leasing Association and National Association of Fleet Administrators, as amicus curiae, in litigaton before the United States Supreme Court regarding the scope of federal preemption of state and local mobile source emission control programs under section 209 of the Clean Air Act.
  • Designed and implemented environmental audit program for world’s largest producer of outdoor power products at facilities throughout the United States.  Counseled client through successful voluntary disclosures to U.S. EPA in connection with certain regulatory findings made during the audit process.
  • Successfully defended first-of-its-kind Clean Air Act enforcement related to company feedstock that would have required many millions of dollars in unnecessary add-on controls and that potentially threatened entire industrial sector.  Settled for under $50,000.  
  • Defended clients for alleged violations of ozone-depleting substances regulations, in connection with a U.S. EPA Criminal Investigation Division investigation into releases of hazardous air pollutants.
  • As counsel for industrial advocacy organization, appeared as amicus curiae in a nationally prominent appeal involving first impression decision about carbon dioxide regulation at power plants.  The appellate court reversed consistent with our briefing.
  • Successfully resolved federal Clean Air Act Title V challenge over periodic and continuous air monitoring that would have set damaging national precedent for industrial sector.
  • Led simultaneous enforcement negotiation and private party litigation defense for major manufacturer involving up to $500 million in remedial costs.  Finalized what was termed the most complex agreement ever entered by U.S. EPA Region 4 that provided for investigation and cleanup of up to 12,000 residential parcels potentially impacted by PCBs and metals, and litigated issues concerning the contribution protection effects of that agreement.
  • At a site named by the Director of the Georgia Environmental Protection Division as the state’s “Number One Superfund Site,” negotiated a cleanup plan that resulted in a first-of-its-kind delisting of hazardous waste at the site, saving at least $15 million.  Obtained a unique agreement for the Georgia EPD to fund a portion of the work out of the state trust fund, saving our clients several million additional dollars.  
  • Led defense of wide-ranging RCRA criminal and civil investigations and simultaneous private party lawsuit concerning a major manufacturer’s misappropriated hazardous waste. 
  • Involved in negotiating the remediation plan for the century-old Atlantic Steel mill site near downtown Atlanta, long considered undevelopable due to environmental issues and now recognized as one of the most significant brownfield redevelopment projects in the nation resulting in 12 million square feet of developed mixed-use space.
  • At one of North America’s largest paper mills, negotiated a complex RI/FS CERCLA Consent Order with U.S. EPA with an approach that saved our client tens and possibly hundreds of millions of dollars.

 

Climate Change and Carbon Management

Companies face a variety of challenges related to the regulation of industrial emissions of carbon dioxide and other greenhouse gases (GHGs).  At the federal level, such emissions are now regulated by the U.S. Environmental Protection Agency and could be subject to a separate cap-and-trade legislative program, which remains under debate.  At the state level, California and the New England states already regulate emissions of GHGs.

M2C2 lawyers were early participants in these issues, and have remained at the forefront of the legal and regulatory impacts of GHG controls on companies doing business in the United States.

We are nationally recognized for our expertise in matters pertaining to carbon capture and storage (CCS).  Based upon that expertise, M2C2 lawyers have been asked to:  (1) testify before various federal and state legislative bodies on matters pertaining to the stewardship of storage sites; (2) serve on California’s Blue Ribbon Panel on CCS; and (3) participate in the Interstate Oil & Gas Compact Commission’s working group for CCS regulations.

Representative Matters

  • Represent the North American Carbon Capture and Storage Association.
  • Represent the Coalition for Commodity CO2, the major trade advocacy organization active in the space. Representation in commercialization of coal-to-liquids technology, whereby anthropogenic carbon dioxide streams are sold for use in oil recovery applications.
  • Provide carbon management advice to a major coal producer.
  • Provide carbon management advice to a major CCS project developer and CCS credit aggregator.
  • Represent a major utility trade association on CCS issues.
  • Drafted a major federal climate bill for a major oil & gas company.

 

Pesticides, Green Chemistry & Nanotechnology

Politicians, environmental regulators and plaintiffs lawyers are driving a green revolution in the manner in which chemical products are manufactured, distributed and used.  These trends are particularly apparent for pesticides, green chemistry and nanotechnology.

Pesticides

M2C2 has expertise in the U.S. Environmental Protection Agency’s regulation of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  FIFRA requires pesticides to be registered, unless one or more exemptions apply.  FIFRA also regulates the claims which appear on a pesticide’s label and associated marketing materials.  M2C2 is adept at guiding clients through the FIFRA regulatory process and thereafter defending the subsequent use of pesticide products in the environment.

Green Chemistry

The Toxic Substances Control Act regulates the introduction into commerce of new chemical substances.  In the face of criticism that regulators lack sufficient information about chemicals in commerce, federal and State regulators are taking steps to impose more stringent environmental requirements on chemicals and related substances.

Some of these new trends include so-called green chemistry requirements and mandates on the use of inherently safer technology (IST). 

Green chemistry refers to government mandates which require products to be designed to reduce or eliminate the use or generation of hazardous substances.  A good example is California’s Green Chemistry Initiative.  Related examples include the European Union’s directives on: (1) the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment; and (2) Waste Electrical and Electronic Equipment.

Rooted in notions of homeland security as much as chemical safety, IST refers to government mandates that companies use processing procedures and equipment to enhance protections for humans and the environment.  IST may, but does not necessarily require, the use of so-called safer substances in the manufacturing process.

M2C2 advises clients on how green chemistry, IST and comparable requirements impact their business.

Nanotechnology

Nanotechnology, as its name suggests, is technology that makes use of nano-scale materials.  Nano-scale materials are small – very small, in fact.  They are used in a variety of applications, from pesticides to pharmaceutical products to paint coatings, all of which may result in human exposures and environmental discharges.

The small structure of nano-scale materials has attracted the attention of regulators, some of whom argue that nanotechnology is not adequately regulated by current law in part because nanotechnology has the potential to create novel risks to human health and the environment.  For example, it is alleged that non-pharmaceutical nano-scale materials, given their tiny size, may more readily enter the human blood stream through occupational or consumer-use exposures.

Our lawyers advise companies on the evolving landscape of nanotechnology regulation.

Representative Matters

  • Sought “me-too” FIFRA end-use registration for a wood preservative.
  • Initiated a section 3 FIFRA registration for an agricultural pesticide.
  • Advised fabric manufacturers on acceptable antimicrobial claims.
  • Represent a coalition of wood treaters and pesticide manufacturers before U.S. EPA and the U.S. Occupational Safety & Health Administration on issues related to worker exposure to hexavalent chromium.
  • Provided high-level regulatory and policy assistance to the manufacturer of one of the most widely used herbicides in the United States.
  • Prepared TSCA premanufacture notices for a German company.
  • Advised firms on possible new nanotechnology requirements.
  •  Assessed whether certain imported clays are subject to TSCA requirements.

 

Green Labeling, Product Safety and Standards

M2C2 lawyers advise clients on matters that impact their ability to manufacture, distribute, and market products in the U.S. and abroad. 

Foremost among these from an environmental perspective in the U.S. Federal Trade Commission’s (FTC) Guides for the Use of Environmental Marketing Claims, or so-called “Green Guides,” which govern the types of “green” claims that companies may make about their products pursuant to section 5 of the Federal Trade Commission Act.

M2C2 also helps clients understand key product safety requirements and standards that impact their ability to bring products to market. 

Key statutes under which we provide advice include: 

  • Consumer Product Safety Act
  • Consumer Product Safety Improvement Act
  • Fair Packaging and Labeling Act
  • Flammable Fabrics Act
  • Federal Hazardous Substances Act
  • Poison Prevention Packaging Act
  • Proposition 65 (California)

Representative Matters

  • Reviewed labels for a U.S. company that manufactures a line of drain cleaners.
  • Reviewed labels for a European company that imports a line of floor treatment chemicals into the United States.
  • Reviewed labels for a U.S. company that manufactures single component insulation foam for residential and commercial use.
  • Reviewed labels for a U.S. company that desired to import a new adhesive for its flooring business.

 

Public Policy

M2C2 helps clients navigate the legislative and regulatory processes by which federal and State environmental requirements are developed and enacted.  In doing so, we maximize the ability of clients to provide appropriate input at each legislative and regulatory stage, thereby maximizing desired outcomes.  Our approach also ensures that an appropriate record is preserved should litigation thereafter be required.

We represent numerous clients on energy and environmental matters before the U.S. Congress and various federal regulatory agencies.

U.S. Regulatory Advice

M2C2 lawyers have experience defending chemicals and chemical products through a combination of legal, regulatory, policy and scientific advocacy.  One of our partners is a chemical engineer, which provides additional capabilities related to technical advocacy.  We have specific experience on products raising indoor air risks, such as diesel exhaust and environmental tobacco smoke.  We are experienced in dealing with organizations such as the International Agency for Research on Cancer, the National Toxicology Program and the National Institute for Occupational Safety and Health.  We maintain relationships with third-party technical consultants who are capable of working effectively and efficiently with us on issues such as detailed technical reviews of exposure assessments in those situations where such high-level technical input is necessary.

We are experienced in a variety of administrative laws and standards, including: 

  • Administrative Procedures Act
  • Freedom of Information Act
  • Paperwork Reduction Act
  • Information Quality Act
  • Various policies and practices of the Office of Information & Regulatory Affairs, including Circular A-4 (“Regulatory Analysis”) and Executive Order 12866

International Regulatory Advice

M2C2 maintains close working relationships with colleagues at law firms around the globe who are experts in their respective environmental, energy and carbon management fields.  We rely upon that advice to provide clients with seamless, worldwide assistance.

M2C2 separately is experienced in numerous European Union Directives, including:

  • Diective 2003/87/EC (EU-ETS)
  • Directive 2002/95 (Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS))
  • Directive 2002/96 (Waste Electrical and Electronic Equipment (WEEE))
  • Directive 94/55 (Framework Directive)
  • Directive 95/50 (Dangerous Goods (DG) inspections)
  • Directive 96/35 (DG safety advisers)
  • Directive 89/391 (OSHA framework directive)
  • Directive 89/654 (minimum workplace requirements)
  • Directive 89/655 (use of work equipment)
  • Directive 90/269 (manual handling of loads and risk of back injury)
  • Directive 90/270 (display screen equipment)
  • Directive 89/656 (PPE)
  • Directive 92/58 (safety and health signs)
  • Directive 90/394 (exposure to carcinogens)
  • Directive 98/24 (chemical agents)
  • Directive 2000/54 (biological agents)
  • Directive 75/442 (framework directive on waste)
  • Directive 91/689 (hazardous waste)
  • Directive 94/62 (packaging waste)

M2C2 lawyers have advised a major transportation company on issues related to (1) the import into the EU of regulated electrical equipment under Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS) and Directive 2002/96/EC on waste electrical and electronic equipment (WEEE); and (2) multi-modal transportation, customs, emergency response, occupational health & safety and environmental disposal requirements for chemical agents, biological agents, diagnostic specimens and radioactive materials in the following countries:  Argentina, Australia, Austria, Bahamas, Belgium, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Latvia, Lebanon, Liechtenstein, Luxembourg, Malta, Martinique, Mexico, Netherlands, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Puerto Rico, Romania, Russia, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tunisia, Turkey, Ukraine, United Kingdom, and Venezuela.


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