Overview

Even at a time of deregulation, many industries continue to be subject to a broad and complex array of environmental regulatory strictures. Katten's Environmental Regulatory and Permitting group advises clients in high-risk industries — oil and gas, energy, chemical, construction, maritime, manufacturing, and transportation — on a wide range of regulatory issues. Our attorneys combine an in-depth knowledge of both environmental regulations and the administrative and legislative process with a thorough understanding of our clients’ business goals and expectations. Recognizing that each client's needs are unique, we tailor our advice accordingly, providing real-world solutions in a cost-effective and efficient manner.

Air

Our attorneys counsel clients on permitting, enforcement and regulatory compliance issues under the Clean Air Act (CAA). We combine strong, substantive knowledge of the CAA and state air laws and regulations with significant experience with the EPA and state environmental agencies, to help clients navigate the complex regulation of emissions.

Waste and Superfund

We have broad experience in matters relating to industrial, hazardous and municipal solid waste management, along with corrective action/remediation of waste constituent releases. We provide counsel on waste compliance issues before relevant federal and state regulatory agencies, and help clients obtain, negotiate and transfer waste-related permits of all kinds. We also counsel on siting requirements and permit compliance. For companies facing enforcement actions or state and federal Superfund claims, we help resolve claims through administrative procedures, litigation and favorable settlement.

Water

Our practice covers all major programs of the Clean Water Act, advising clients on permitting, enforcement and compliance matters concerning wastewater and stormwater discharges and other water-quality-related issues.

Environmental issues in real estate

Working closely with the firm's real estate and transactional teams, our attorneys assess and manage environmental issues in the context of real estate and corporate transactions, including:

  • Identifying environmental issues, potential liabilities and operational constraints that can affect transactions
  • Advising on environmental due diligence, including all appropriate inquiry and continuing obligation standards
  • Structuring transactions
  • Drafting representations, warranties and indemnifications
  • Assessing possible future compliance obligations and potential liability
  • Negotiating federal and state compliance and remediation requirements to protect our clients and their business objectives when projects involve property with environmental issues

Experience

  • Air
  • Represented clients on contested case hearings before TCEQ and the Texas State Office of Administrative Hearings on permitting cases. Successfully obtained air quality permits for a coal-fired power plant and a concrete batch plant, wastewater discharge permits, hazardous and non-hazardous injection well permits, a hazardous waste landfill permit, and an in situ uranium mining permit.
  • Represented clients in successfully obtaining Single Property Designations from the TCEQ for air quality regulatory purposes.
  • Represent Fortune 50 energy company in various Title V regulatory concerns affecting Alaska offshore drilling platforms.
  • Represented client in administrative contested case hearing and appeals before the Travis County District Court and the Texas Eleventh Court of Appeals. Obtained a Texas Clean Air Act preconstruction permit for an 800-megawatt coal-fired electric generating facility with a CO2 capture unit.
  • Waste
  • Represented permit applicant in hotly contested case hearing. Obtained municipal solid waste Type I landfill permit before TCEQ and the SOAH.
  • Provision of ongoing regulatory compliance counseling on air, water, waste and cleanup issues for two waste management facilities (a municipal solid waste Type I landfill and an RCRA permitted hazardous waste landfill) in Texas.
  • Represented client in negotiating settlement of administrative proceedings, involving a contested case hearing, on an application for renewal and major modification of Commercial Hazardous Waste Treatment, Storage and Disposal Facility permit.
  • Represented client in administrative contested case hearing and district court appeal. Successfully obtained renewal and new Class 1 hazardous waste injection well permits from TCEQ.
  • Water
  • Represent leading lawn and garden manufacturer in a pilot study relating to the design and construction of a wastewater treatment system and associated NPDES permitting concerns, including the applicability of the RCRA wastewater treatment unit exemption.
  • Represented client in contested case hearing on a municipal wastewater discharge permit proceeding. Settled prior to the hearing on the merits.
  • Defend a Class I railroad in a statewide Clean Water Act citizen suit alleging unpermitted discharges of coal from railcars to the waters in Washington State.
  • Defended federal agency actions including Clean Air Act rulemakings, Clean Water Act permits and federal contributions to cleanups under RCRA and CERCLA. *
  • Environmental issues in real estate
  • Represented foundation in evaluating environmental issues regarding site selection for the construction of a presidential center. Our work included negotiating environmental agreements with site owners for detailed environmental investigation of the candidate sites. We persuaded site owners to agree to our subsequent enrollment of the selected site in the voluntary remediation program, and to reimburse related investigation and future remediation costs.
  • Negotiate and implement strategy for our client's acquisition of certain assets of a disposal company, and leasing of other assets—including disposal wells—by a client subsidiary. Our strategy minimizes long-term liability associated with the seller's alleged prior unauthorized spraying of roads with benzene-containing brine waste from oil field fracking operations.
  • Represent private equity firm in negotiating environmental provisions of its contract for the purchase of a packaging company, including historically contaminated property owned by the company. The contract provides our client with significant environmental indemnities, which we supplemented by negotiating an environmental insurance policy that provides substantial coverage for matters that are not frequently covered by such policies, including known contamination.
  • Represented client in evaluating remediation and regulatory liabilities and related legal risks associated with its proposed acquisition and brownfield-type redevelopment of a contaminated property. Tasks included determining potential for, and likely extent of, protections from comfort letters and/or prospective purchaser agreements with the EPA, and evaluating possible risk reduction tools, including insurance products and environmental liability transfer to a remediation firm.
* Experience prior to Katten