Practice Areas & Industries: Jackson Walker L.L.P.

Practice/Industry Group Overview

Regulations involving protection of the environment, while often well intentioned, are notoriously complex and detailed, and they routinely create the need for the regulated community to engage knowledgeable professionals to avoid costly pitfalls. The immense volume of environmental regulations is evidenced by the size of Title 40 of the Code of Federal Regulations - it includes more than 15,000 pages of rules and spans more than two feet of shelf space. Yet these CFR volumes contain only EPA regulations - not federal statutes, relevant case law, or state laws and regulations.

Given the tremendous scope and complexity of environmental regulations it is often difficult, or inefficient, for a company's regulatory staff to remain knowledgeable about the details and subtleties of the regulations. Attorneys in Jackson Walker's environmental section routinely assist clients with understanding complex regulations and solving challenging regulatory problems. The section includes attorneys with the knowledge and experience to appreciate the details of our clients' operations, know the impact of environmental regulations on those operations, and craft creative and practical solutions to challenging regulatory problems. Our attorneys are regularly in contact with state and federal regulators regarding environmental matters and are intimately familiar with the policies and procedures of the Texas Commission on Environmental Quality (TCEQ), formerly known as the Texas Natural Resource Conservation Commission. The environmental section also includes attorneys who are active in lobbying at the Texas Legislature and who are able to assist clients with politically sensitive issues.

Services Available

While our attorneys have dealt with a broad range of environmental laws and regulations, we have particularly strong experience in the following areas.

Regulatory Compliance and Permitting
The section helps clients comply with the numerous regulatory requirements that govern their operations. We represent clients in contested hearings and assist in the preparation and filing of permit applications, closure plans, and other administrative matters. We provide consultation on questions concerning the Clean Water Act, the Clean Air Act, TSCA, RCRA, FIFRA and corresponding state laws and regulations. We provide ongoing services to manufacturing companies, including negotiation of Consent Agreements for remediation of contamination, assistance with wastewater permitting issues, evaluation of spill reporting requirements, resolution of Notices of Violation, and application of the RCRA corrective action rules.

Transactional Counseling
We have experience in structuring and negotiating transactions to minimize environmental liabilities and in managing environmental due diligence reviews in connection with mergers, acquisitions, project financing, and securities offerings. We assist Jackson Walker's corporate and transactional practice, serve as local counsel for out-of-state law firms, and also serve as special environmental counsel for law firms and clients. Examples include advising an oil and gas company regarding the acquisition of a refinery, including detailed evaluation of historical contamination, the remediation of wastewater lagoons and land farm sites, the effect of the Clean Air Act Amendments and various NOVs, as well as the negotiation of detailed representations and warranties, indemnities, and disclosure schedules. We have advised the purchasers of several historically contaminated chemical manufacturing facilities, including the negotiation of complex environmental indemnities and financing arrangements, along with coordination of detailed due diligence. Our representation involves ongoing advice regarding interpretation of these indemnities and resolution of claims thereunder.

Water Rights and Groundwater
As the population in the state continues to grow, the need for water for agricultural, industrial, and municipal uses becomes more important and more highly valued. We have experience assisting clients with obtaining rights to divert and use surface water, including amending certificates of adjudication. We have represented clients in permitting of water reuse projects, including golf courses. We are also experienced with the laws and regulations governing the use of groundwater. We have represented clients in litigation over the regulation of withdrawals from the Edwards Aquifer. We understand the statutory authority and scope of powers of underground water conservation districts and have represented such districts in hearings, rulemaking proceedings, litigation and various organizational matters. We have also represented users of groundwater and are familiar with the types of regulations imposed by groundwater districts.

Water Utilities
We have represented retail public utilities, including municipal utility districts, investor-owned utilities, cities, and non-profit water supply corporations in various regulatory and rate matters. We have represented clients in contested hearings involving disputes between neighboring utilities over service areas and certificates of convenience and necessity ("CCNs"). We have represented clients in negotiations involving the cost and terms under which potable water is to be supplied to new subdivisions. We have represented clients in hearings before the TCEQ involving disputes over the cost of water service. We have represented water utilities in rate hearings within the jurisdiction of the TCEQ. We have represented clients in the formation of municipal utility districts and special utility districts. We also have experience with obtaining regulatory approval for the sale, transfer, and merger of water utilities.

CAFOs and Agriculture
We have represented the owners of feedlots, dairies and other types of concentrated animal feeding operations ("CAFOs") in permitting and compliance matters. Because of our firm's long tradition of representing clients involved in agriculture, and our knowledge of EPA and TCEQ regulations, we have assisted numerous clients in permitting CAFOs in various counties throughout the state. CAFOs are subject to state and federal regulations governing management of their wastewater and air emissions. We are familiar with the TPDES registration and permitting requirements which govern CAFOs. Our clients have included those involved with raising cattle, swine, lamb, and chickens, and we have also represented dairies and egg laying operations. We have represented clients in district court litigation and appeals over the validity of CAFO permits issued by TCEQ.

Brownfields and Voluntary Cleanups
Our clients buy and sell contaminated property. The environmental section helps clients limit their liabilities and develop the best approach for obtaining cost-effective remediation. We advise on the procedures and requirements of the Texas Voluntary Cleanup Program and the Innocent Owner Program. We work with TCEQ project managers and environmental consultants to fashion timely and cost-effective methods to obtain closure of a site. We are familiar with TRRP rules and guidance, and regularly advise clients on clean-up levels, notice obligations, and restrictive covenants.

Litigation and Superfund
Members of the section have courtroom experience handling a broad range of environmental contamination and toxic tort claims. We have significant expertise in oil spill/maritime matters, which includes involvement in the Glacier Bay and Exxon Valdez disputes. The section's attorneys have experience with CERCLA, the federal Superfund law, and its state counterparts. We have represented potentially responsible parties (PRPs) against the United States government and private parties in respect to National Priorities List (NPL) and state Superfund sites. The firm's attorneys have litigated private CERCLA claims involving recovery of remediation costs incurred to clean up contaminated properties.

Environmental Audits
We have assisted clients with environmental compliance audits conducted under the Texas Environmental, Health and Safety Audit Privilege Act (the "Audit Act"). The Audit Act encourages the use of voluntary audits to identify and remedy regulatory compliance issues. The Audit Act provides an immunity from administrative and civil penalties for certain violations of law which are identified in an audit, disclosed to the regulatory agency, and corrected within a reasonable time. The Audit Act also provides a privilege from disclosure for audit investigations and reports. We have advised clients regarding their obligations under the Audit Act, notice requirements, and disclosures of violations. We have also negotiated compliance agreements with TCEQ following the disclosure of violations.

Administrative Enforcement
We defend clients involved in state and federal administrative agency enforcement actions involving environmental regulations and statutes. Our administrative and civil enforcement experience includes defense of energy, chemical, and manufacturing clients in contested RCRA, CWA, and EPCRA proceedings with EPA Region VI and the TCEQ. The section's attorneys represent companies before the Railroad Commission and handle appeals of various administrative agencies.