Experience
Wastewater Enforcement Defense
Defense of municipality in connection with waste water permit violations from its POTW. Successfully negotiated reduction in civil penalty and consent agreement for return to compliance.
Re-Purchase of Property / PCB Contamination
Negotiated the re-purchase of a commercial property where the seller failed to clean up PCB contamination pursuant to the original purchase contract assigned to our client in the late 1990's.
White Consolidated Industries, Inc. v. Westinghouse Electric Corporation
We were lead counsel for Westinghouse Electric Corporation in litigation involving contract, CERCLA and other claims against Westinghouse arising out of clean up of TCE contamination at a manufacturing facility sold by Westinghouse to plaintiff. We obtained summary judgment for Westinghouse on all claims, which was affirmed by the Sixth Circuit Court of Appeals. White Consolidated Industries, Inc. v. Westinghouse Electric Corporation, 179 F.3d 403 (6th Cir. 1999).
FIFRA Enforcement Defense
Enforcement defense in connection with labeling of pesticide products not in compliance with FIFRA. Successful reduction of proposed fine and return to compliance.
Defining the EPA’s Water Quality Standards and Permitting Authority
We represented the Kentucky Coal Association (KCA) when the Environmental Protection Agency attempted to implement a final guidance that enabled blockage of Clean Water Act permits for coal mining operations.
The EPA issued final guidance in July 2011 which directed its field offices to object to state-issued permits in certain ecoregions in Appalachia (particularly Eastern Kentucky and West Virginia) unless they contained a “reasonable potential analysis” prior to permit issuance (even if the mine was new and therefore no site-specific data upon which to base an RPA was available) and/or numerical conductivity limits, which allowed EPA to block permits for virtually all new or expanded surface coal mines in Eastern Kentucky or West Virginia. We represented the KCA in arguing that the EPA had exceeded its authority in issuing the final guidance because it went beyond their oversight as outlined in the Clean Water Act and the Surface Mining Control and Reclamation Act. We also alleged that the EPA’s final guidance infringed upon the states’ authority to enact and monitor their own water quality standards.
Our case was transferred to the U.S. District Court in Washington, D.C., where the KCA became a co-plaintiff along with the National Mining Association, the Commonwealth of Kentucky, the state of West Virginia, and the city of Pikeville (Ky.). Working in coordination with other plaintiff counsel, we prepared extensive briefs, including researching and addressing Kentucky-specific requirements related to water conductivity standards. We also participated in oral arguments during a hearing, demonstrating that the power to set water quality standards is delegated to the states and that the EPA did not follow the formal rulemaking process to attempt to implement a federal standard.
After hearing oral arguments, the judge ruled that EPA’s reliance upon the final guidance to object to and thereby block the issuance of individual Clean Water Act permits for new or expanded surface coal mines in Eastern Kentucky and West Virginia was unjustified and unlawful. Unfortunately, EPA continues to refuse to issue the permits at issue in direct contravention of the court’s order. The case is now on appeal before the U.S. Circuit Court of the District of Columbia.
Learn more about this case in the article: Judge Sides With Coal Industry Against EPA
Litigation
When an asset-seller sought to pass its responsibility to contribute to the cost to cleanup a landfill in West Chester, Ohio, to an asset-buyer, Borden, Inc. turned to Dinsmore for counsel and defense. In a bench trial with numerous witnesses and hundreds of thousands of documents, we convinced the court that the asset-seller retained the cleanup liability and that Borden did not assume the liability. Subsequently, the Sixth Circuit Court of Appeals upheld the decision in its entirety (OXY USA, Inc. v. Borden, Inc., 2007 U.S. App. LEXIS 694 (January 7, 2007)). Borden’s victory not only prevented the asset-seller from transferring its liability for the cost to clean up the landfill at issue in the case, but prevented the asset-seller from alleging that Borden was responsible for its cleanup obligations at any other site in the United States where any of the more than half a dozen facilities that were the subject of the sale may have sent waste for disposal.
Pre-Bid Due Diligence
Represented a bidder in connection with the pre-bid due diligence related to a major energy utility acquisition involving Kentucky, Tennessee, and Indiana legal issues. The ultimate value of the deal for the successful bidder was reported to be approximately $9.5 billion. The work involved all aspects of public utility regulation and environmental law, as well as strategizing likely communications with major political stakeholders throughout all levels of state and local government. Notable areas of representation in this matter included issues involving:
• Regulatory approvals for change in ownership or control of utilities;
• Regulatory approvals for financing applications;
• Regulatory approvals for obtaining certificate of public convenience and necessity;
• Renewable energy contract review;
• PSC and OSHA complaints;
• Utility supply and vendor contracts;
• Utility tariffs;
• Litigation;
• Regulatory review of rate-affecting issues;
• Fuel Adjustment Clauses;
• Pollution Control Bond change in control;
• Cost recovery of capital expenditures for pollution control equipment and renewable energy projects;
• Environmental surcharges;
• Projecting future impact of greenhouse gas regulations;
• Title V air permits;
• Environmental contamination and compliance issues associated with ongoing operations;
• Disposal of coal combustion by-products;
• General environmental regulatory compliance;
• State and local taxation;
• Real estate and operating leases;
• Franchises, rights-of-way, permitting, planning and zoning, and eminent domain;
• Retail operations review;
• Wholesale electric supply agreements;
• Gas pipeline regulatory issues; and
• Legislative, policy, and strategic planning advice.
Advice regarding Establishment and Operation of Natural Gas utility (Gas/Water/Sewage)
We are currently assisting a large, municipal water and sewage utility in Kentucky with respect to its plans to enter the natural gas business in order to spur economic development in the region. We are advising the client on all aspects on the statutory and regulatory issues implicated by this new venture, as well as the related issues implicated by its status as a municipal instrumentality. In addition to helping the client navigate these issues, we have also been retained to assist with negotiations regarding gas purchase agreements, transmission and distribution issues, eminent domain issues, and all aspects of the project – “from A to Z” - that will help them secure the supply of gas and deliver it to customers.
Environmental Crime Defense
Successful defense of client resulting in a plea agreement and compliance agreement with the USA that resulted in no debarment of contractor regarding federal work it was doing.
Rate Cases
We represented a Generation & Transmission (G&T) electric utility in two rate cases. Our representation commenced while the utility was in difficult financial straits, and through our efforts, we helped the utility secure sufficient revenues to ensure its continued viability and the continued provision of safe, reliable, and reasonable service to its customers. Throughout this representation, we interfaced heavily with the staff at the Kentucky Public Service Commission and other stakeholders in the litigation.
Lead Counsel in Leasing Transaction for Marcellus Shale Rights
We served as lead counsel for agent of landowners group comprising approximately 35,000 acres that included negotiating and drafting options to lease, and ultimately leases, then negotiating and representing the landowners group at closing for the paid-up lease of Marcellus Shale rights at $4,000 per acre, resulting in an approximately $140 million transaction.
Purchase of Working Interest in Marcellus Shale Wells
We served as local West Virginia counsel for a Houston firm representing a client that purchased a working interest in 18 Marcellus Shale wells already drilled, along with a working interest in 12 additional wells yet to be drilled. We assisted with a subset of the transaction closing documents, including the memorandums of lease that document and provide notice of our client’s ownership interests. This was a multi-million dollar transaction.