Enforcement Response & Litigation

Enforcement Response & Litigation

Finding your plant in the cross-hairs of an EPA investigation can be surprising and confusing.
EPA often begins an enforcement action with extensive document requests while providing no explanation of the basis of the investigation. These EPA “fishing expeditions” can spiral into Notices of Violation and lawsuits.

What is the scope of the government’s authority? How are you required to respond? Must you simply open the doors and turn over all of your records? In what form? Must you create new documents? Responding to information requests and compliance inquiries can be costly and disruptive of normal business operations. Knowing how to respond from the outset can allow you to manage the scope of the inquiry and focus your resources.

Both EPA and the States enforce compliance with environmental laws and regulations through lawsuits brought before administrative and judicial tribunals. When a compliance inquiry leads to a Notice of Violation or administrative complaint, the targeted business needs to understand the rules and policies that govern the administrative proceedings, the substance of the environmental allegations, its defenses under the law, and the risks involved. If not handled properly, administrative enforcement actions can lead to unnecessary full blown litigation.

ELC lawyers have extensive experience representing clients in administrative enforcement actions brought by state and federal environmental agencies, in lawsuits brought by the Department of Justice or State Attorneys General, and in responding to citizen complaints. Where a Notice of Violation cannot be resolved administratively or a complaint is filed directly in court, we provide the substantive expertise to defend against environmental claims before state and federal judicial tribunals.

Representative Matters

  • Prevailed against challenge brought by the Sierra Club in a PSD permit appeal before the USEPA Environmental Appeals Board, allowing construction of a new coal gasification plant to proceed.
  • Obtained voluntary dismissal of citizen suit in the U.S. District Court alleging “sham” minor source permitting and threatening to enjoin construction of a new ethanol manufacturing plant.
  • Prevailed on Motion for Summary Judgment in a precedent-setting case involving the applicability of generic “Reasonably Available Control Technology” (RACT) to petroleum refinery wastewater treatment ponds.
  • Obtained site-specific regulatory relief for three manufacturers in appeal of USEPA’s Federal Implementation Plan for Illinois in the U.S. Court of Appeals for the 7th Circuit.
  • Appealed and obtained revisions to “Best Available Control Technology” (BACT) determinations and PSD emission limits for secondary aluminum facilities in Ohio and Indiana.
  • Represented municipality in the contested siting of a waste transfer station before the Illinois Pollution Control Board.
  • Represented Global Fortune 500 waste management company in responding to USEPA Unilateral Order to clean up a major CERCLA site in northern Indiana, including negotiation of Record on Decision and Scope of Work for remediation, and subsequent negotiations and litigation with large group of potentially responsible parties in the U. S. District Court for the Northern District of Indiana.
  • Represented owner of two municipal landfills in response to state Remedial Action Priority Site listing, including soil and groundwater investigations, obtaining approval of remediation plan, development of community relations plan, compliance with National and State Contingency Plan requirements, and filing of environmental insurance claims.
  • Represented a variety of clients, such as a major oil company, a landfill gas co-generation company, and an ethanol plant, in response to USEPA Section 114 Information Requests regarding Clean Air Act compliance.

Environmental Media