Environmental

The Environmental Law Department of Honigman Miller Schwartz and Cohn LLP® consists of nine lawyers and one legal assistant. Several lawyers from the firm's Litigation Department also assist the Environmental Law Department on environmental litigation matters. The Environmental Law Department was one of the first of its kind in Michigan and is one of the state’s largest dedicated environmental practice groups.

The Department's expertise in the environmental field is well known. A number of Department attorneys have served on councils of the State Bar of Michigan's Real Property and Environmental Law Sections. Department attorneys have also served as chairperson of the State Bar of Michigan's Environmental Law Section. Several members of the Department are authorized to receive Department of Homeland Security Chemical-terrorism Vulnerability Information under the Chemical Facility Anti-Terrorism Standards (CFATS) regulatory program enacted in October 2006.

Many of the Department's lawyers have received undergraduate and graduate degrees in technical areas related to environmental regulation, such as economics, environmental sciences, and engineering. Several members of the Department have also served in federal and state agencies that administer and enforce environmental laws.

The Department's attorneys regularly lecture on environmental law issues before a wide variety of business and professional organizations, and have published numerous papers and articles on various facets of environmental law. The Department publishes client alerts on environmental law developments affecting Michigan that are sent electronically to clients. The Department also authored the Michigan Environmental Law Handbook, a guide to Michigan's environmental laws. Department attorneys have also contributed to the Michigan Environmental Law Deskbook and the Michigan Environmental Statutes and Regulations book published by the State Bar of Michigan, and the American Bar Association’s publication Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property.

The Department's attorneys have significant experience in the following environmental practice areas.

Air Quality

The Department's attorneys have extensive experience in air quality permit and compliance matters before local air quality authorities, the Michigan Department of Environmental Quality ("MDEQ"), other state environmental agencies, and EPA. The Department has handled issues concerning the Prevention of Significant Deterioration ("PSD") program, hazardous and toxic air pollutants, emissions control and monitoring requirements, new source review in non-attainment areas, and many other facets of local, state, and federal air quality regulation.

A substantial component of the Department's air quality practice involves defending clients in enforcement actions. The Department has extensive experience, for example, in assessing whether penalties proposed by enforcement authorities are consistent with applicable law and agency penalty policies. In addition, Department attorneys have challenged the applicability of various regulatory requirements to clients, evaluated the technical sufficiency of evidence of alleged violations, and handled numerous other enforcement-related issues.

Department attorneys also regularly assist clients in a wide variety of industries on air quality permitting and compliance issues. The Department has frequently advised clients on such issues as determining whether a client must install continuous emission monitors, negotiating appropriate emissions limitations, and resolving whether a client must obtain PSD or other air quality permits. The Department has advised a number of clients on Title V Operating Permit issues, such as determining whether clients must apply for such permits, helping clients prepare permit applications and assisting clients in negotiating permit conditions.

In one significant case, Department attorneys obtained, on behalf of an industrial coalition, a stay from the United States Court of Appeals for the Sixth Circuit of the imposition of a Clean Air Act construction moratorium that EPA sought to impose in southeastern Michigan. As a result of the stay and promulgation by EPA of the PM10 national ambient air quality standard, Michigan avoided a construction ban on total suspended particulate sources in the Greater Detroit non-attainment area.

Alternative Dispute Resolution

Members of the Department have been actively involved in allocation issues at a number of state and federal remediation sites and the use of alternative dispute resolution ("ADR") techniques in environmental matters. One member of the Department has served as an allocation consultant as well as a mediator of various types of environmental and other litigation disputes.

Brownfield Redevelopment

The Department has assisted local development agencies in the planning and formation of Brownfield Redevelopment Authorities throughout Michigan. Work in this area includes formation of Brownfield Redevelopment Authorities and making available financial incentives for specific project implementation. We also have assisted developers in structuring brownfield redevelopment projects so as to obtain financial incentives and liability protection for pre-existing site conditions.

Criminal Enforcement

The Department has assisted a number of clients in responding to investigations and prosecutions of alleged criminal violations of environmental laws. In such matters, Department attorneys have investigated the factual background, formulated defense strategies, and negotiated with government prosecutors. Department attorneys have jointly handled such matters with both the firm's criminal defense lawyers and criminal defense lawyers from outside the firm.

Environmental Issues in Bankruptcy

Honigman’s Environmental Law Department, in partnership with the firm’s Commercial Law, Bankruptcy and Reorganization Department, offers significant experience and efficiencies in addressing environmental issues in bankruptcy. The seamless cooperation between both departments enhances our efforts to effectively assist clients and allows us to offer unique solutions and optimize claims, resulting in increased potential for success. Some areas in which Honigman has developed expertise include:

• Assisting individual Potentially Responsible Parties ("PRPs") or PRP Superfund Groups in making claims, and aggressively pursuing settlement of environmental claims in the bankruptcy of a fellow PRP.
• Pursuing administrative or priority treatment Proofs of Claims for past and future costs associated with environmental contamination.

One of our most significant successes involved seeking administrative treatment for a contingent environmental claim for reimbursement or contribution due to a potential co-liability between the debtor and the creditor PRP Group in front of the 6th Circuit Bankruptcy Appellate Panel. Ultimately, we were able to negotiate a successful settlement for the client. The debtor entered a settlement agreement with the creditor PRP Group resulting in the debtor agreeing to allow the United States’ and PRP Group’s general unsecured claim for response costs and natural resources damages associated with an ongoing Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") matter. (In re Eagle-Picher Industries, Inc.).

The national scope and breadth of our environmental practice combined with our substantial bankruptcy practice allows Honigman to meet the needs of clients navigating the complex environmental issues that can arise in the bankruptcy context.

Environmental Issues in Corporate and Real Estate Transactions

The Department often advises clients on environmental issues related to the purchase and sale of real estate and business assets. Department attorneys routinely commission and evaluate baseline and other environmental assessments and audits and negotiate and draft contract terms regarding environmental representations and warranties, indemnification for environmental liabilities (including the use of pollution and remediation liability insurance policies), transfer of environmental permits and licenses, and allocation of cleanup and other environmental responsibilities and liabilities. As a result of our unique experience in brownfield redevelopment, we have also assisted in negotiating financial incentives and other creative means of addressing potential environmental issues that may present obstacles to completing a transaction.

Facility Siting

Department attorneys have assisted many clients in resolving environmental issues raised in connection with the selection and siting of major industrial and commercial plants, facilities and developments so that development, construction, and operation could proceed. Facilities ranging from industrial plants to major shopping centers, residential developments, and transportation arteries have all been a focus of this area of the Department's practice.

Hazardous Waste

Department attorneys have advised operators of hazardous waste treatment, storage, and disposal facilities ("TSDFs") and generators, transporters, and recyclers of hazardous waste on the complex state and federal regulatory requirements applicable to hazardous waste management. The Department regularly counsels clients on such issues as the determination of whether a given waste is hazardous, compliance with manifesting requirements, and standards regarding the construction and operation of TSDFs, including corrective action requirements.

Homeland Security

Since the terrorist attacks of September 11, 2001, Congress has enacted laws designed to protect the Nation's security. Included in these laws is the Chemical Facility Anti-Terrorism Standards (CFATS) regulatory program enacted in October 2006 and implemented by the Department of Homeland Security (DHS) in 2007. This program is designed to protect public safety by ensuring the security of chemical facilities and chemicals. The CFATS program's scope is very broad because it encompasses many facilities that would not traditionally be considered chemical facilities. It covers any establishment that possesses or plans to possess a quantity of a chemical substance determined by DHS to be potentially dangerous. Our years of experience assisting clients with regulatory programs and agencies will enable us to efficiently assist our clients navigate the CFATS program.

Insurance

The Department has extensive experience in negotiating and litigating with insurance companies to obtain coverage under comprehensive general liability, property, excess, and umbrella insurance policies to pay legal, technical and other expenses for environmental cleanups. The Department's attorneys are also active in a nationwide group of lawyers representing insureds in coverage cases.

Licensing and Permitting

The Department has assisted many clients in obtaining state and federal licenses and permits and exceptions or variances to permit requirements and regulations related to air quality, water quality, hazardous waste, solid waste, wetlands, and other environmental areas. Department attorneys have evaluated whether licenses or permits are required for client activities, assisted clients in completing license and permit applications, negotiated with regulatory officials regarding the proper conditions to be included in licenses and permits, and assisted clients in making presentations at hearings on license and permit issues.

Natural Resource Damages

Natural resource damages (NRD) cases present numerous challenges, including complex and novel legal, factual, scientific, technical, and economic issues. Honigman works closely with sophisticated expert consultants in the areas such as resource economics, biology, resource restoration, risk assessment and environmental remediation and with clients to develop cost effective strategies to address these challenging issues.

Honigman defended the two largest NRD claims ever brought in Michigan. One case involved the defense of a client against a NRD claim for alleged PCB contamination of the Saginaw River and Saginaw Bay. In the Saginaw River case, Honigman acted as lead counsel in negotiating resolution of federal, state, and tribal trustee NRD claims, including a claim for restoration of the Saginaw River. The natural resource damages were originally estimated to be over $100 million; however, the $28.22 million settlement covered both a sediment remediation cashout for the Saginaw River and a NRD settlement. Honigman assisted the client to develop a NRD mitigation plan that provided significant environmental value to the trustees. The plan involved assembling approximately 1600 acres of environmentally-valuable sensitive land and dedicating the land to protection and enhancement of natural resources. As part of the settlement, our client received a broad covenant not to sue and contribution protection from potential third party suits from the United States, including U.S. Environmental Protection Agency, U.S. Department of Interior, U.S. Fish and Wildlife Service, and U.S. Army Corps of Engineers, the State of Michigan, and the tribal trustee. In the other significant NRD case, Honigman defended clients against claims related to the alleged destruction of fishery resources by fish entrainment in a pumped storage electric power generating facility near Lake Michigan.

Honigman has also counseled clients concerning numerous other instances of alleged damage to natural resources, including claims based on injury to groundwater resources and to wildlife habitat. Honigman has developed and maintains a strong reputation for leadership in negotiating innovative and cost-effective solutions for its clients in the environmental arena and has worked throughout the country on a wide variety of issues.

Natural Resources

The Department's attorneys regularly assist clients in matters involving wetlands protection, marina development, shorelands development, mineral extraction and other natural resources protection programs or developments. Department attorneys have handled matters involving permitting and other issues under Michigan's Inland Lakes and Streams Act (now codified in Part 301 of NREPA) and other state statutes regarding shoreline and coastal development. With respect to wetlands matters, Department attorneys have frequently advised clients on determining whether property is subject to wetlands regulation and on compliance with regulations protecting wetlands, uplands, and endangered species.

Department attorneys also have extensive experience assisting clients in matters arising under the National Environmental Policy Act, including assessing the need for Environmental Assessments ("EAs") and Environmental Impact Statements ("EISs") and counseling clients on the adequacy of EAs and EISs.

Participation in Rulemakings and Legislative Activity

The Department's attorneys often advocate the views of clients on public policy issues to legislative bodies and to administrative agencies authorized to promulgate regulations. For example, one of the Department's attorneys played a significant role in the negotiations on amendments to the Michigan Environmental Response Act, formerly known as "Act 307" and now codified in Part 201 of NREPA, and in the promulgation of regulations implementing that statute. The Department's lawyers also participated in the development of the MDEQ air quality regulations on methylene chloride, and the adoption by the MDEQ Science Advisory Panel of a policy related to regulation of crystalline silica as a toxic air pollutant and subsequent promulgation of an MDEQ rule change removing crystalline silica from the Michigan list of toxic air pollutants. A Department attorney was also appointed by the Director of MDEQ to serve on a workgroup charged with making recommendations to revise the state's groundwater discharge regulations.

Remediation of Contaminated Sites

The Environmental Department's attorneys have broad experience in negotiating site remediation issues with federal and state environmental agencies, and, when necessary due to a breakdown in negotiations, in litigating challenges to agency actions regarding contaminated sites. We regularly assist clients in responding to governmental requests for information, site investigation, response actions, corrective action, and penalties related to contaminated sites, negotiating, selecting and implementing innovative and appropriate cleanup remedies, negotiating "no further action" letters, defending against and pursuing response cost recovery claims, and allocating cleanup costs among potentially responsible parties ("PRPs"). We have represented many individual clients who have been identified as PRPs for the cleanup of sites of environmental contamination under the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and counterpart state laws, including Part 201 of the Natural Resources and Environmental Protection Act ("NREPA"), as well as chaired or served as members of CERCLA PRP steering committees. We have represented a number of CERCLA site steering committees over the past decade, including the Carter Industrials PRP Committee, the Forest Waste Coordinating Committee, the McAdoo Site PRP Committee, the Northline Site PRP Committee, the Rasmussen Site Remediation Group, and the Fons/Old Wayne Remediation Group. We have been involved in a number of the most significant legal developments related to such cleanups.

In addition, the Environmental Department's attorneys have negotiated innovative remediation remedies involving applying favorable state cleanup criteria to RCRA corrective action activities, Prospective Purchaser Agreements with U.S. EPA, and "no further interest" letters from U.S. EPA to resolve potentially conflicting state and federal jurisdictional issues. We also have led negotiations of consent decrees for mixed-funding cleanup plans, which include performance by the government of, or governmental funding for, significant aspects of the remedial work, and de minimis PRP settlements.

Representation of Governmental Clients

The Department's attorneys have represented numerous governmental clients in connection with a wide variety of environmental issues. For example, Department attorneys have represented Roscommon County with respect to its municipal landfill, Central Wayne County Sanitation Authority with respect to its landfill and incinerator, and the Greater Detroit Resource Recovery Authority with respect to its incinerator. The Department has advised Macomb Township on opposing the siting of a sanitary landfill in the township. The Department also represented Sands Township in connection with the siting and construction of the Marquette County landfill in the township, including the negotiating and drafting of an intergovernmental agreement among Marquette County, the City of Marquette, the East and West Marquette Solid Waste Authorities, and Sands Township to provide for such siting.

Representation of Trade Organizations

The Department advises several trade organizations on environmental matters. Department attorneys assist these organizations by apprising them of pertinent judicial decisions, analyzing pending legislation and regulations, and appearing before legislative and regulatory authorities to advocate the views of these organizations.

Sediment Management

Contaminated sediment management issues are now emerging as top priorities for many Federal and State Agencies. At the same time, these challenging and costly issues are on the cutting edge of change at the present time for a number of reasons. New technologies and refinements to older methodologies are available and in-situ remedies, such as underwater capping, are gaining acceptance in U.S. EPA Regions II, IV, V, and X among others. At the same time, industry is facing an extraordinary opportunity to pursue expedited, streamlined and cost-effective solutions at many federal and state sites due to changes in the regulatory climate and policy developments. Honigman Miller Schwartz and Cohn LLP ("Honigman") has been successful in capitalizing on this opportunity for a number of our clients.

Honigman is a national leader in contaminated sediment management issues. Honigman helped organize an ad hoc industry group, the Sediment Management Work Group, and one of our attorneys serves as its Coordinating Director. The Group's Mission Statement is to "advance risk-based, scientifically sound approaches for evaluation of sediment management decisions." The Group has grown since 1998 to over 40 members. The Group currently is implementing a number of initiatives in support of its Mission Statement. Honigman's involvement with the Sediment Management Work Group places the Firm in the unique position of being intimately familiar with the latest technical and policy developments nationally as well key personnel at U.S. EPA Headquarters in this important and growing area of environmental regulatory attention and concern.

Our involvement in contaminated sediment management issues includes acting as a peer reviewer for the National Research Council Report, "Sediment Dredging At Superfund Megasites: Assessing The Effectiveness," and for the U.S. Environmental Protection Agency’s "Monitored Natural Recovery Technical Resource Document," co-authoring a paper, "Analysis Of Recontamination Of Completed Sediment Remedial Projects," and giving numerous presentations on contaminated sediment management issues.

In addition to Honigman’s technical and policy expertise in contaminated sediment management, we are experienced in representing parties involved in remediating sediment sites. For example, we represented a paper mill in the Manistique Harbor Site in Region V. Following the initial issuance of the Region’s proposed dredging plan, the PRPs were successful in obtaining de novo review of the Region’s recommendation by U.S. EPA Headquarters in what appears to have been a pre-curser to the U.S. EPA National Remedy Review Board. The Region selected underwater capping as an approved "final" remedy for the first time in the Great Lakes. A capping remedy would have resulted in a savings of over $25 to $35 million compared to the estimated cost of dredging. The debate over dredging versus capping was quite intense, in light of Region V’s strong preference for dredging remedies for the Great Lakes. Ultimately, in 1996, the parties negotiated a precedent setting full cash-out settlement, with no re-openers in the area to be remediated. The cash-out equaled the cost of the low bid for capping, combined with the cost that had been budgeted by the PRPs for O&M.

During the process, the parties were successful in establishing new TSCA precedent, extending the limited holding of the Standard Scrap decision. Standard Scrap had rigidly and arbitrarily banned containment remedies if PCB concentrations exceeded 50 ppm unless they were found in areas which historically had been intended as disposal locations, e.g. landfills or surface impoundments. U.S. EPA Headquarters agreed that a correct interpretation of TSCA would permit the use of containment remedies at all sites, based on an evaluation of protectiveness on a site-specific basis.

Honigman also worked on the Kalamazoo River Superfund Site, where we represented a defendant in a Superfund cost recovery lawsuit regarding PCB-contaminated sediments in the Kalamazoo River. Our representation concluded when we recovered on the client’s claims against its insurer with respect to defense coverage for this matter. In other matters, Honigman has assisted clients in developing plans and obtaining approvals to remove and treat sediments from an on-site discharge channel, holding ponds and creek beds, and has also negotiated consent orders and judgments relating to these matters with both federal and state environmental regulatory agencies. Honigman has also been involved in numerous federal and state remediation matters in which the management, remediation, and funding of remediation of contaminated sediments has been an issue. For example, Honigman has addressed contaminated sediment concerns in Michigan in the Detroit River and the Great Lake Systems that it connects, such as the St. Clair River, Lake Erie, and Lake Huron, the River Raisin, the Saginaw River, and the Tittabawassee River, as well as outside of Michigan at sites in Illinois, Indiana, Minnesota, New York, New Jersey, Ohio, and Wisconsin in connection with our representation of numerous clients.

In connection with these matters, Honigman has worked closely with sophisticated experts in the areas of risk assessment, site investigation, modeling, and environmental remediation and has addressed and resolved novel legal issues raised in these matters. Through these matters and others, Honigman has developed and maintained a strong reputation for leadership in negotiating innovative and cost-effective solutions for its clients in the environmental arena.

Solid Waste

The Department regularly handles the full spectrum of solid waste regulatory issues for clients ranging from one of the largest waste disposal concerns in the world to many single landfill operators.

Toxic Substances

The Department has handled a substantial number of matters involving compliance with Toxic Substances Control Act (TSCA) requirements for PCBs and other chemical substances. Department attorneys have advised clients on such matters as the new PCB "Mega Rule," which permits more flexibility in the treatment and disposal of PCBs, often resulting in significant cost savings, participation in the TSCA Compliance Audit Program as well as on TSCA PCB-related and other matters, such as installation of protective equipment for transformers, disposal of PCB-contaminated substances, remediation of PCB spills, transformer removal, import into the United States of chemical substances, and pre-manufacture notice requirements. Department attorneys have also defended numerous clients against TSCA administrative complaints filed by EPA.

Water Quality

The Department has handled water quality matters involving negotiations with regulatory authorities on the terms and conditions of pretreatment, groundwater, and National Pollutant Discharge Elimination System ("NPDES") permits, compliance with such permits, litigation of administrative and judicial water pollution enforcement actions, and various other issues.

Litigation

The Department's attorneys have extensive experience in supporting environmental litigation. Both an environmental attorney and a litigation attorney are usually assigned to each environmental litigation matter to ensure that both litigation skills and substantive environmental law expertise are made available to the client and brought to bear on the problem. The Department has participated in litigation involving claims for recovery of cleanup costs, challenges by clients to environmental agency rulemakings and permitting decisions, enforcement actions by environmental regulatory agencies and citizens, and numerous other issues. Less