The firm’s expertise in both judicial and administrative forums, as well as alternative dispute resolution, provides the necessary skill to win. We have successfully defended our clients against government enforcement actions under various federal environmental statutes, such as the Comprehensive Environmental Response Compensation and Liability Act (CERCLA, or Superfund), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Clean Air Act (CAA), and various other environmental statutes and their counterparts in Illinois and other states.
Carey’s experience both as a lawyer with the U.S. Environmental Protection Agency, (U.S.EPA), Region 5, and as a partner in large law firms provides an invaluable perspective. As an enforcement attorney, he prosecuted numerous cases involving PCBs, asbestos, VOCs, and many other hazardous and regulated substances. He also acquired a keen sense of how the bureaucracy works, and how it affects a client’s position. As an attorney in large law firms, he was imbued with a deep understanding of how to strategize to achieve the client’s objective and get the job done.
The firm commonly defends clients in enforcement matters brought under a variety of statutes, and in a variety of contexts. In Superfund cases, for example, the setting may be an administrative enforcement action by U.S.EPA, which may also involve the U.S. Department of Justice (U.S. DOJ) and/or a state environmental agency, such as the Illinois Environmental Protection Agency (IEPA). The client may be the only respondent or defendant, or it may be one of many (perhaps dozens) potentially responsible parties (PRPs). Alternatively, the case may have been filed in state or federal court.
Yet other Superfund cases may not involve the government directly, notably Superfund contribution and cost recovery actions. Several decisions of the U.S. Supreme Court over the last decade have addressed private Superfund actions and have directly affected cases in the firm’s practice. The firm is on the cutting edge on a number of issues and continually re-visits its strategies to assure that the client will receive the optimal result in a cost-effective manner. Pragmatism is the order of the day. We never forget that clients want us to solve problems and allow them to return to their business.
Other private causes of action include “citizen suits.” For example, RCRA provides for actions against defendants who may be contributing to an “imminent and substantial endangerment to health or the environment.” This device might be useful for an individual or business – either can file “citizen suits” – who belatedly discovers a predecessor property-owner left behind a leaking underground storage tank (UST). The CWA and the CAA also have citizen suit provisions, as do many state statutes. In Illinois, the Illinois Environmental Protection Act allows such suits to be filed, but the Illinois Pollution Control Board is the exclusive forum for such cases. In some situations, that may be a viable alternative, but in others, a client’s objectives may best be served by filing a case in Illinois Circuit Court. The latter may be an option because even though the Circuit Court may not have jurisdiction to entertain a statutory citizen suit, it may have jurisdiction to hear a case brought under theories of centuries-old common law – nuisance, trespass, negligence, etc.
In Illinois, enforcement actions relating to air, water and hazardous waste commonly commence with a notice of violation from IEPA. The notice may allege an alleged exceedance of an emission limit in an air permit for volatile organic materials, or say, particulate matter. Or, it may allege a violation of the effluent limitations prescribed in a National Pollutant Discharge Elimination System (NPDES) Permit for copper, BOD or any of a number of other pollutants or contaminants. The case may be filed by the Illinois Attorney General’s Office before the Pollution Control Board, or in Illinois Circuit Court. Or, in Chicago and the surrounding areas, cases may also be brought by the Metropolitan Water Reclamation District when allegations of unlawful discharge to the MWRD’s massive sewer system are involved.
Irrespective of the forum, we devise strategies to solve the problem and vigorously defend our clients and advance their interests. Always aware of the costs of litigation, we work to amicably settle the matter, as we and our client judge necessary and desirable. Our primary objectives are to listen to our clients and resolve their issues in the most cost-effective manner possible. Here are a few examples in which we did just that:
- Represented manufacturer in suit for contribution in federal court under CERCLA; appealed to U.S. Court of Appeals and succeeded in having lower court ruling reversed – case settled.
- Defended circuit board manufacturer in federal enforcement case for alleged violations of Emergency Planning and Community Right to Know Act (EPCRA), dealing with Toxic Chemical Release Inventory Reporting (Form R) – settled case with significant reduction of penalties.
- Defended commercial bakery in federal enforcement case for alleged violations of permitting requirements and volatile organic compound (VOC) limitations under the Clean Air Act (CAA) – settled case with significant reduction of penalties and supplemental environmental project.
- Defended commercial painting company in state suit for alleged violations of permit requirements and volatile organic material (VOM) emission limitations under the Illinois Environmental Protection Act – settled case with significant reduction of penalties.
- Represented regional health care concern in citizen suit against major oil company to recoup cleanup costs relating to leaking underground storage tanks (USTs) – case settled after obtaining favorable decisions from Illinois Pollution Control Board.