Representative Engagements - Environmental
Pepper assists clients in every aspect of sustainability, including climate change
and energy issues. Such matters involve evaluating, with the assistance of experts
and consultants, the strength of the science, evaluating the potential regulatory
and personal injury liabilities from the presence of allegedly toxic chemicals,
and developing a sustainable, yet scientific valid strategy.
Environmental Compliance
Pepper obtains regulatory permits and approvals and more generally ensures compliance
with environmental, health and safety regulatory requirements (e.g., compliance
with the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery
Act, Toxic Substance Control Act, the Federal Insecticide and Fungicide Act, and,
where applicable, their state equivalents) and internal company policies.
We represented an unregulated utility subsidiary that manufactures a supplemental
fuel used in coal-fired generating stations. This new pelletized fuel is produced
from coal wastes, pulp and paper, plastic wastes and proprietary additives. Manufacturing
plants are being constructed in many locations in the United States, and we are
representing this client in the formation of joint ventures in Argentina, Brazil,
Costa Rica, India, Mexico and South Africa.
We represent a utility affiliate in the development of new commercial products utilizing
fly ash and flue gas desulfurization sludge. By combining these two materials with
various additives, our client produces a concrete-like material that has very low
permeability and can be used to fill in mines and to cover waste disposal areas.
We are representing this client in negotiations with a steel company relating to
the use and sale of this product.
Furthermore, Pepper evaluated what, if any, actions a company should take to protect
its workers, the environment, and product users when it begins manufacturing nanosized
material (products composed of or using in their manufacture particles that are
a millionth of meter in diameter), in light of the fact that there are yet no legally
binding requirements specifically applicable to nanosized particles.
Pepper has provided advice to manage a company’s “potential” environmental and product
liability resulting from its historical use of perfluooctanic acid (PFOA) in the
manufacture of a number of products. PFOA is a chemical widely found in human blood
throughout the world, but no evidence has been found that exposure to PFOA in workers
or the general population has or can cause adverse health effects in humans.
Pepper advises clients on the requirements of the Toxic Substance Control Act (TSCA)
pre-manufacturing notice, which is needed prior to marketing a new chemical, including
the premanufacture approval for certain biotechnology products. Pepper is assisting
in preparing an application for a pesticide that would prevent the growth of mold
in construction material and is advising on the regulatory approvals needed, if
any, to market an environmentally preferable product. Pepper advised clients on
the best method of obtaining governmental “verification” or other approvals of innovative,
less polluting technologies.
We provided advice on riparian rights issues and other water supply acquisition
options, and advised on brownfields issues in facility siting.
We also advised a natural gas distribution company located in the Midwest on environmental
issues at a substantial number of manufactured gas sites. Part of this representation
focused on regulatory issues associated with the primary chemical of concern at
such sites, ferric ferrocyanide. We assisted a natural gas distribution company
with brownfields redevelopment efforts.
Pepper represented major manufacturers in air, water and solid waste matters, including
companies in the cement, glass, steel, chemical, and oil industries.
Environmental Advocacy
Pepper attorneys assist companies and industry trade associations in shaping environmental
policy by developing and articulating scientifically sound, public policy advocacy
positions, including commenting on regulations and guidance.
Pepper prepared comments on regulatory agency rules, including the 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, Brownfields regulations, the EPA’s lender liability
proposal, the EPA’s draft soil screening level guidance, Pennsylvania’s Act 2 rules,
and Michigan’s Part 201 rules. Pepper challenged administrative rules, including
the EPA’s hydrofluorocarbon ban regulations, in the Court of Appeals for the District
of Columbia Circuit.
Pepper has developed innovative strategies addressing novel risks, such as:
- the alleged health impacts of exposure to magnetic fields from the power lines
- the alleged contribution of the emission of water vapor from a paper plant to fog
that may have, in part, cause a traffic accident on a nearby interstate highway
- the potential risks from exposure to nanosized material used in its manufacturing
operation
- the potential risk from small amounts of residual mercury in residences previously
released during the removal of potentially hundreds of thousands of gas pressure
relief devices from the 1930s through the present
- a proactive defense to scientifically invalid allegations that a substance contained
in the member’s product may cause adverse health effects
- the potential risks arising from exposure to dioxin, lead, hexavalent chromium,
talc, and fiberglass
- assisting a trade association in successfully commenting on proposed American Conference
of Government and Industrial Hygienists (ACGIH) Threshold Limit Value for latex
and on a Consumer Product Safety Commission request for comments on petitions to
classify a latex as hazardous sensitizer and on a California Department of Health
Services proposal to classify carbon black as a chemical known to the State of California
to be a carcinogen or reproductive toxin
- evaluated the potential liability due to the presence of silica in building material
and in a commercial product sold to dental laboratories.
Environmental Litigation
We represented an interstate gas pipeline company in negotiations with a state agency
related to a multi-site cleanup of compressor stations along a pipeline. The primary
contaminants of concern were polychlorinated biphenyls (PCBs). We represented the
same pipeline company in connection with the EPA’s development of national soil
screening levels for Superfund cleanups.
We also represented an oil pipeline company in numerous claims for personal injury
and property damage stemming from releases of product from pipelines. In addition,
we represented an affiliate of the pipeline company in commenting on proposed hazardous
waste regulations and in lobbying for amendments to the regulations.
