William J. Walsh
William J. Walsh is of counsel in the Washington office of Pepper Hamilton LLP, where he heads that office’s Environment and Energy Practice Group. He also is a member of the firm’s Sustainability, CleanTech and Climate Change Team. Mr. Walsh provides a range of environmental counseling, compliance, permitting, transactional and litigation services (including defense of personal injury claims) to foreign and domestic clients of varying size across the spectrum of business and industry. His experience encompasses all major federal environmental statutes, such as the Clean Air Act, the Clean Water Act, Superfund, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and many state and local environmental laws. He has also assisted clients in matters involving foreign environmental laws. Often, his counseling involves innovative scientific, regulatory, legal and policy questions.
Mr. Walsh has written and spoken on a wide range of topics, including risk assessment, the toxicology of polychlorinated biphenyls (PCBs), EPA’s sediment cleanup initiative, the issues raised by EPA’s endocrine disrupter theory, choosing cleanup goals and technologies, the use of groundwater models in the regulatory system and toxic torts. Mr. Walsh is the former chair of the environmental working group of the Central and East European Law Initiative (CEELI), an American Bar Association sponsored group that is providing advice to Central and East European governments concerning methods of democratizing their institutions.
Mr. Walsh is listed in Chambers USA: America’s Leading Lawyers for Business.
Before 1986 when he joined Pepper, Mr. Walsh served as section chief of the U.S. Environmental Protection Agency (EPA) Office of Enforcement and was lead EPA counsel on the precedent setting hazardous waste lawsuits brought against Occidental Chemical Corporation concerning the Love Canal and related landfills. He also worked in the Office of Water Enforcement. He is serving on the National Academy of Sciences’ (NAS) Committee on the Disposal of Nonstockpile Chemical Weapons and has previously served on the Committee On Ground-water Cleanup Alternatives and other NAS Committees. He has been regularly consulted by NAS on public policy issues.
Mr. Walsh’s environmental engagements have involved site/plant-specific representations, transaction related advice, advocacy of regulatory and legislative changes, and advice on how environmental regulations may impact the market for a client product.
Site-, Plant- or Product- Specific Representations
Some of Mr. Walsh’s more significant representations include:
- developing a regulatory strategy for addressing the issue of risk of exposure to electromagnetic fields (EMF) in the permitting of a major electric utility line
- negotiating more cost-effective remedies, including the reopening and updating of EPA Records of Decisions at Superfund and other hazardous waste sites, typically saving tens of millions of dollars. The chemicals of concern at these sites have included, but are not limited to, PCBs, chlorinated dibenzodioxins and dibenzofurans (also referred to as dioxin or TCDD), arsenic, lead, chromium, mercury, polycyclic aromatic hydrocarbons (PAH), ferric ferrocyanide (FFC), phenol, trichloroethylene, and tetrachloroethylene.
- filing a Toxic Substance Control Act (TSCA) petition requesting EPA to issue a clarifying regulation or declaratory statement concerning the disposal options available for PCB contaminated sediment and soil
- preparing defenses at Superfund sites based on the lack of bioavailability of various chemicals and obtaining EPA and other governmental approval for innovative technologies
- representing a consumer product distributor in two lawsuits alleging that the lead levels leaching from the product exceeded the California Proposition 65 daily exposure level for lead
- advising clients on the requirements of the National Environmental Policy Act (NEPA) and state equivalents, including matters involving novel issues.
Advocating Regulatory Policy/Regulatory Changes
Mr. Walsh assists companies and trade groups in shaping environmental policy by developing and articulating public policy advocacy positions. Some representative transactions include:
- representing trade associations, for example the Biotechnology Industry Organization, the National Automotive Radiator Service Association, and the PCB Consensus Panel (a coalition of the CMA PCB Panel, the Solid Waste Utility Group PCB panel, the National Electrical Manufacturers Association, and a number of companies)
- evaluating the regulatory status of ceramic fibers, including the ongoing Toxic Substances Control Act proceeding on ceramic fibers
- evaluating whether traditional risk assessment approaches used by the International Agency for Research on Cancer were appropriate for assessing the carcinogenic potential of small inert particles
- petitioning the Agency for Toxic Substances and Disease Registry to re-evaluate its toxicity factor for 1,4 dioxane based on a new pharmacokinetic model and new Federal science policies providing for the use of pharmacokinetic modeling
- preparing comments on agency rules, including EPA's advanced notice of rulemaking and the draft rule concerning PCB disposal rules, hazardous waste identification rules for wastes and for contaminated media, the hazardous waste corrective action rule, and the Pennsylvania Act 2 hazardous waste cleanup and Brownfields regulations
- challenging administrative rules, including EPA’s hydrofluorocarbon ban regulations, in the Court of Appeals for the District of Columbia Circuit
- advising clients on developing trends in domestic and international environmental law, including the impact of environmental laws on the market for their products
- filing comments on EPA’s draft soil screening level guidance
- advocating to the EPA Superfund office the greater use of bioavailability data in decision making
- evaluating whether a new product might be classified differently by the National Toxicological Program (NTP) than the product it replaced based on the scientific factors adopted by NTP
- lobbying for Superfund reform and Brownfields programs
- advocating to Congress and other administrative agencies the adoption of safe harbor provisions for lenders
- advised the Republic of Kazakhstan concerning the reform of their environmental laws, performed due diligence for the privatization of Kazak industrial facilities.
Mr. Walsh also provides transaction or compliance related advice, including:
- counseling borrowers and lenders, and buyers and sellers on the implementation of environmental due diligence investigations, site assessments and audits, and the negotiation and drafting of indemnities, representations, warranties, and covenants in complicated business transactions
- assisting clients in facility siting and in obtaining or transferring environmental permits and licenses incident to business transactions
- advising clients on environmental compliance programs
- preparing a comprehensive evaluation of the applicability of federal worker hazard communication and material safety data sheet (MSDS) requirements and the equivalent laws in all 50 states to a substance categorized as a carcinogen by the International Agency for Research on Cancer
- reviewing and commenting on proposed worker hazard communication programs and MSDSs
- negotiating the transfer of an underground injection well permit
- advising clients on methods of using Brownfields and voluntary cleanup programs to acquire or divest contaminated property, including a Base Realignment and Closure site.
Advice to Companies Marketing “Environmentally Preferable” Technology
Mr. Walsh represents companies, consultants and trade associations seeking approval of (or avoiding pitfalls in marketing) less-polluting technologies. He works with the intellectual property and commercial attorneys in the firm to assist in developing business strategies and obtaining capital (through the Small Business Administration, EPA or private sources). His representative transactions in this arena include:
- advising on methods of obtaining governmental approval for an innovative technology
- advising on the best method of obtaining governmental “verification” or other approvals of innovative less polluting technologies
- advising on the Federal Trade Commission’s advertising regulations and the limitation on “green” labeling
- advising clients on the requirements of the TSCA pre-manufacturing notice, which is needed prior to marketing a new chemical
- advising clients concerning the requirements of the new TSCA rule requiring premanufacture approval for certain biotechnology products.
Mr. Walsh also utilizes his experience in scientific and legal issues in personal injury litigation. His representative engagements include:
- representing a client in a Frye/Daubert hearing involving exposure to toluene and other chemicals
- representing a defendant in personal injury actions brought as a result of a pipeline rupture
- representing a defendant in personal injury actions alleging that the defendant’s plant created an artificial fog which contributed to an automobile accident
- advising clients concerning defenses to personal injury claims alleging that exposure to PCBs causes adverse health impacts
- advising clients on the impact of product liability on the market for their products
- publishing a monograph on the legal and scientific viability of personal injury claims that exposure to magnetic fields presents a significant human health risk
- writing and speaking on the distinction between regulatory levels and levels which are more likely than not to cause injury to a person exposed, and the flaws in the endocrine disrupter theory.
Other Federal Regulation
In addition to EPA advice, Mr. Walsh advises companies on the National Highway Traffic Safety Administration, the Consumer Product Safety Commission (CPSC) Occupational Safety and Health Administration (OSHA), and hazardous materials transportation safety requirements. Representative transactions include:
- representing several tire companies in a challenge to the stringency of the National Highway Traffic Safety Administration’s tire pressure monitoring system rule
- providing advice to a tire manufacturer regarding TREAD Act compliance issues
- providing advice regarding strengths, weaknesses of filing potential appeals of various federal rules
- advising on potential worker compensation issues
- in addition to EPA penalty cases, defending companies in penalties actions brought by various federal agencies, including CPSC, and the Department of Transportation
- convincing the IRS to expand its interpretation of the applicability of open loop biomass tax incentive
- advising companies manufacturing and using hazardous materials concerning methods of minimizing both regulatory and litigation risks.
B.S. 1968, cum laude, Manhattan College
J.D. 1978 George Washington University Law School; Order of the Coif
Admitted to practice in District of Columbia