Services Provided / Representative
Experience
The following is a partial list of areas of environmental, health, and safety law and types of
legal services with which Russell S. Frye has substantive experience:

Air Pollution and Climate Change

  • Rulemaking to develop, and judicial review of, ambient air quality standards.
  • Obtaining Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NSR), and minor-
    source NSR permits for the construction of major new facilities and for modifications of existing facilities in
    industries such as chemical, petroleum refining, iron and steel manufacturing, foundries, pulp and paper, and
    wood products.
  • Applicability determinations and other interpretations of New Source Performance Standards (NSPS) and of
    National Emission Standards for Hazardous Air Pollutants (NESHAPs), including Maximum Achievable Control
    Technology (MACT) standards.
  • Delisting of hazardous air pollutants (HAPs).
  • Negotiation and adjudication of Clean Air Act Title V operating permits.
  • Trading of emission reduction credits (ERCs) and of sulfur dioxide (SO2) allowances under the acid rain
    program.
  • Administrative and judicial challenges and defense of construction and operating permits.
  • Defense of enforcement actions involving NSR, PSD, NSPS, VOC regulations, opacity limitations, and the like.
  • Defense and prosecution of citizen suits addressing air pollution violations.
  • Litigation and rulemaking concerning regulation of greenhouse gas emissions.
  • Lobbying for recognition of carbon sequestration and joint implementation for purposes of the U.N.
    Framework Convention on Climate Change.
  • Counseling clients on policies and programs to address climate change, as well as corporate disclosure of
    climate change risks and opportunities.
Chemical Regulation/Health & Safety

  • Participating in EPA rulemaking establishing requirements for reporting for the Toxics Release Inventory (TRI) under the Emergency Planning and
    Community Right-to-Know Act (EPCRA).
  • Advising clients on reporting under the TRI regulations and responding to EPA and state enforcement actions.
  • Commenting on regulations for health and safety study reporting, testing, and substantial risk reporting under the Toxic Substances Control Act
    (TSCA).
  • Advising clients on the need for reporting of substantial risk information under TSCA section 8(e), preparing section 8(e) notifications, and
    responding to EPA follow-up.
  • Advising clients on maintaining records of adverse effect allegations and complying with requirements to submit health and safety studies under
    TSCA sections 8(c) and (d).
  • Advising clients on the applicability of, and obtaining antimicrobial pesticide registrations under, the Federal Insecticide, Fungicide, and
    Rodenticide Act (FIFRA).
  • Commenting on Occupational Safety and Health Administration (OSHA) permissible exposure limits (PELs) and American Conference of
    Governmental Industrial Hygienists (ACGIH)
  • Threshold Limit Values (TLVs) for workplace exposure to chemicals, as well as inter-agency Acute Exposure Guideline Levels (AEGLs).
  • Rulemaking and litigation concerning removal of chemicals from EPA’s list of hazardous air pollutants (HAPs).
  • Rulemaking and litigation over standards for exposure to chemicals in ambient air (NAAQS), drinking water (primarily drinking water standards),
    surface waters (water quality standards and criteria), sludge, and solid and hazardous waste.
  • Assisting clients in the design and interpretation of air dispersion modeling and water quality modeling.
  • Commenting on EPA and inter-agency risk assessment guidelines and on agency risk assessments for various chemicals, including for the
    Integrated Risk Information System (IRIS).  
  • Assisting clients in understanding the regulatory, toxic tort, and policy implications of animal feeding and inhalation studies, irritation testing,
    in vitro testing, and epidemiological studies.
  • Assisting clients in the design of and communication about epidemiological and other toxicity studies.
  • Rulemaking and litigation concerning EPA and state whole effluent toxicity (WET) test procedures and application to wastewater discharges.
  • Advising manufacturers, trade associations, and municipalities on responding to allegations of adverse health effects from chemical exposure.
  • Rulemaking and litigation concerning USDA regulation of infectious diseases in animals and application of the Virus, Serum, Anti-toxin Act.
  • Commenting on and advising clients on compliance with Food and Drug Administration (FDA) regulation of indirect food additives and medical
    devices.
  • Counseling clients on compliance with Department of Transportation (DOT) and Federal Aviation Administration (FAA) regulation of packaging,
    shipment, and transportation of hazardous materials (HAZMAT).
  • Advising clients on the Federal Hazardous Substances Act and Consumer Product Safety Commission (CPSC) regulations.
  • Counseling and litigation concerning California Proposition 13 notification requirements.
  • Advocacy concerning appropriate groundwater and soil concentrations of toxic substances and petroleum hydrocarbons for remediation
    purposes.

Environmental Policy and Environmental Management Systems (EMS)

  • Development of corporate environmental policies.
  • Development and auditing of corporate EMS programs.
  • Conducting or reviewing environmental audits.
  • Advising on required (under SEC, FASB, or other guidelines) or voluntary reporting to environmental and economic regulators, investors, and the
    public.
  • Training in-house environmental managers and attorneys.
  • Training employees on document creation and retention; reporting requirements and procedures; and environmental, health, and safety (EHS)
    regulations.
  • Negotiating consideration for EMS in penalty calculations and consent decrees.
  • Applying EMS to activities in multiple countries.
  • Responding to government and consumer preferences for purchasing “environmentally preferable” products.
  • Obtaining support for recycling, reuse, and low-impact products.
  • Responding to EHS requirements of lenders.

    Government and Public Relations

  • Monitoring agency rulemaking and legislative proposals.
  • Lobbying the Executive Branch and Congress.
  • Drafting proposed legislation, committee report language, and committee and floor colloquy.
  • Drafting and advocating riders to appropriations bills.
  • Preparing statements and witnesses for congressional and agency hearings.
  • Stimulating congressional inquiries and letters.
  • Commenting on draft and proposed regulations.
  • Advising on compliance with the Federal Advisory Committees Act (FACA) and other procedural rules for government policymaking.
  • Advising clients on press releases and other responses to the media.
  • Developing and implementing community involvement plans and public relations plans.
  • Assisting clients with public hearings and meetings.

    Litigation and Alternative Dispute Resolution (ADR)

  • Judicial review of agency action in federal district courts and federal courts of appeals.
  • Federal district court actions alleging agency failure to perform a non-discretionary duty, under the Administrative Procedure Act (APA).
  • Intervention (in support of the agency or in support of the petitioners) in actions for judicial review of agency action or to force agency action.
  • Amicus curiae briefs in federal courts of appeals and the United States Supreme Court.
  • District court actions to enjoin agency action that is arbitrary and capricious or contrary to law.
  • Actions to force or prevent disclosure under the Freedom of Information Act (FOIA).
  • Defense of federal and state enforcement actions before administrative tribunals and federal and state courts.
  • Defense of industrial and municipal organizations subjected to citizen suits to enforce environmental laws.
  • Litigation of claims for attorneys fees under environmental laws, FOIA, and the Equal Access to Justice Act (EAJA).
  • Internal investigations, grand jury proceedings, and plea bargaining concerning criminal violations of environmental laws.
  • Defense and prosecution of “toxic tort” actions alleging injury from exposure to toxic chemicals.
  • Administrative and judicial appeals of permit terms.
  • Actions to require cleanup of, or recover the cost of cleanup of, hazardous waste sites.
  • Actions to enforce environmental warranties and indemnities in purchase agreements.
  • Defense of natural resource damage (NRD) claims.
  • Drafting contractual provisions for mediation or arbitration of environmental disputes and participating in such proceedings.

Solid and Hazardous Waste

  • Sanitary landfill permitting.
  • Approval of alternative landfill cover material.
  • Restrictions on land spreading of wastewater treatment plant sludge.
  • Development and approval of beneficial uses of sludge.
  • Remediation of wastewater treatment ponds and sludge ponds.
  • Solid waste incinerator permitting.
  • Regulation of burning of solid and hazardous waste.
  • Identification and listing/delisting of hazardous waste.
  • Counseling and enforcement defense for requirements for hazardous waste generators and treatment, storage, and disposal (TSD) facilities.
  • Corrective action at hazardous waste facilities.
  • Rulemaking and counseling concerning recycling and reuse of hazardous waste.
  • Permitting and closure of hazardous waste TSD facilities.
  • Criminal investigations of hazardous waste management activities.

Transactions and Finance

  • Assessing environmental liabilities for acquisitions or financing of real estate and businesses.  (Conducting or managing environmental “due
    diligence.”)
  • Drafting and negotiating environmental representations and warranties.
  • Drafting and negotiating environmental provisions in leases (on behalf of both lessee and lessor), for real estate and equipment.
  • Preparing, negotiating, and litigating or arbitrating claims for reimbursement of environmental costs under purchase agreements and tolling
    agreements
  • Assisting commercial lenders and development banks with the development and implementation of programs to minimize environmental liability
    in traditional loans, lease financing, sale-leaseback, financing, project finance, and other types of defeased-asset financing..
  • Drafting and negotiating agreements for remediation of environmental contamination; contracts with environmental consultants and
    contractors; access agreements for investigation or remediation of property; and agreements for allocation of environmental liabilities, permits,
    tradable emission credits, and the like.
  • Drafting and negotiating, on behalf of both borrowers and lenders, EHS provisions in project finance, sale/leaseback, securitization, defeased-
    asset financing, and other types of financing agreements.
  • Assisting borrowers/developers in meeting EHS concerns of commercial banks, development banks, and export credit agencies.
  • Drafting contractual provisions for mediation or arbitration of environmental disputes and participating in such proceedings.
  • Assessing EHS liabilities of acquisitions in other countries.
  • Assisting oversees borrowers in satisfying EHS concerns of and negotiating EHS covenants with commercial lenders, export credit agencies, and
    development banks in the U.S. and other countries.
  • Participating in the development of the environmental policies of development banks and export credit agencies.

Water Pollution

  • Negotiation and administrative and judicial appeals of National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water
    Act (CWA).
  • Establishment and enforcement of Whole Effluent Toxicity (WET) permit limitations.
  • Responding to EPA objections to (vetoes of) state-issued NPDES permits.
  • Development and EPA approval of state NPDES programs.
  • Participation in rulemaking for and judicial review of, effluent limitations guidelines, New Source Performance Standards (NSPS), and
    pretreatment standards for categories of industrial dischargers.
  • Rulemaking and litigation over the establishment of federal and state water quality criteria.
  • Development and judicial review of state lists of impaired waters, fish consumption advisories, mixing zone policies, and antidegradation
    policies.
  • Development and judicial review of Total Maximum Daily Loads (TMDLs) and Waste Load Allocations (WLAs).
  • Compliance with Spill Prevention Control and Countermeasures (SPCC) plan regulations and reporting and response to spills of oil and hazardous
    substances.
  • Identification of wetlands and “waters of the United States.”
  • Army Corp of Engineers dredge and fill permits under CWA section 404, including application of nationwide permits.
  • Interplay between the Endangered Species Act and the CWA.
  • Defense of CWA administrative and judicial enforcement actions and citizen suits.
  • Negotiation of contracts for joint municipal/industrial wastewater treatment and privatization of municipal wastewater treatment.
  • Development and judicial review of regulations under CWA section 316(b) establishing criteria for new and existing cooling water intake
    structures.
  • Negotiating agreements for the reuse of treated municipal and industrial wastewater.
  • Permitting of contaminated stormwater runoff.
  • Regulation of feed lots, poultry farms, and other concentrated animal feed operations (CAFOs).

Water Supply

  • Advising clients on compliance with Safe Drinking Water Act requirements for public water supply systems.
  • Defending and prosecuting “toxic tort” cases concerning the quality of public water supplies.
  • Negotiating source water (wellhead) protection plans.
  • Participating in rulemaking to establish SDWA primary and secondary drinking water standards.
  • Environmental issues in acquisitions and project finance of water supply systems.

For a listing of the business and government sectors with which Russ Frye has particular familiarity, click here

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