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| Subject-Matter Expertise and Experience |
Air Pollution and Climate Change
Russell Frye has been involved in air pollution matters for stationary sources, on both the policy
making side and the permitting and compliance side, for his entire legal career. In the early
1980s, for example, he put together the arguments, applying EPA’s recently issued guidance on
Best Available Control Technology (BACT), that allowed construction of a large coal and wood-
waste boiler without a scrubber, demonstrating that BACT could include burning of wood as a
form of sulfur dioxide emissions control. Mr. Frye has been involved in Prevention of Significant
Deterioration (PSD) and non-attainment New Source Review (NSR) permitting for greenfield
facilities as well as major modifications for many types of industrial facilities. He has negotiated
innovative approaches to BACT, emission offsets, Lowest Achievable Emission Rate (LAER), and
ambient air quality modeling problems, and he has defended PSD and NSR permits before the EPA
Environmental Appeals Board (EAB) and in state proceedings.
Russell Frye has been involved in air pollution matters for stationary sources, on both the policy
making side and the permitting and compliance side, for his entire legal career. In the early
1980s, for example, he put together the arguments, applying EPA’s recently issued guidance on
Best Available Control Technology (BACT), that allowed construction of a large coal and wood-
waste boiler without a scrubber, demonstrating that BACT could include burning of wood as a
form of sulfur dioxide emissions control. Mr. Frye has been involved in Prevention of Significant
Deterioration (PSD) and non-attainment New Source Review (NSR) permitting for greenfield
facilities as well as major modifications for many types of industrial facilities. He has negotiated
innovative approaches to BACT, emission offsets, Lowest Achievable Emission Rate (LAER), and
ambient air quality modeling problems, and he has defended PSD and NSR permits before the EPA
Environmental Appeals Board (EAB) and in state proceedings.
Mr Frye represented clients in Reasonable Available Control Technology (RACT) limitations and other limitations in State
Implementation Plans (SIPs), as well as litigation over alleged ambient impacts of air emissions. He has both negotiated settlements
with and litigated against federal and state governments as well as private citizen groups. In 2000 he won a case of first impression in
the U.S. Court of Appeals for the Ninth Circuit, holding that environmental activist groups are not entitled to attorney’s fees under
the Clean Air Act when they intervene in a government enforcement action.
Mr. Frye also has been involved at all levels of policy making in the air pollution field, from pursuing individual variances as SIP
revisions, to lobbying Congress on amendments to the Clean Air Act. He represented independent power producer interests, for
example, in the development of innovative provisions in the Clean Air Act creating limited SO2 emissions allowances for the control
of acid rain. Subsequently, he commented on EPA rules implementing that legislation and challenged those rules in court, resulting in
EPA’s capitulation on the eve of oral argument. His extensive familiarity with the operation of many types of air pollution sources
and with available pollution control technology, as well as the principles of ambient air quality monitoring and modeling, have
enabled him to provide effective advocacy for clients in many different industrial sectors. He has participated in a number of the
key cases concerning implementation of the Clean Air Act, such as the “WEPCo” case concerning PSD permitting and New Source
Performance Standards (NSPS). He came up with an innovative strategy, for example, of using EPA’s failure fully to implement a 14-
year-old settlement agreement as a way to put pressure on EPA that ultimately resulted in major revisions to the PSD/NSR program in
December 2002.
Mr. Frye has participated in rulemaking and subsequent judicial review for Maximum Achievable Control Technology (MACT) standards
for emissions of hazardous air pollutants for a variety of industry sectors, and he regularly advises clients on the intricacies of
complying with MACT requirements. He also represented the paper industry in one of the first petitions to remove an air pollutant
from the list of hazardous air pollutants and in the only district court and appellant litigation to date concerning hazardous air
pollutant de-listing.
In recent years, Russ Frye has been actively involved in representing business interests in connection with concerns about global
climate change. For example, Mr. Frye represented a coalition of 13 trade associations and business organizations that intervened in
the Court of appeals for the District of Columbia Circuit in support of EPA’s conclusion that the Clean Air Act does not authorize
regulation of emissions from motor vehicles for the purpose of mitigating global climate change. He has advised numerous companies
on their strategies for addressing the emerging issues of climate change and their communications to investors and the public about
the effect of climate change concerns and legislation on their businesses.
Mr. Frye has published articles on air pollution permitting in numerous publications, including the Journal of the Air Pollution Control
Association, Pollution Engineering, Journal of Environmental Permitting, Modern Casting, and the National Law Journal.
Business Transactions, Finance and Real Estate
Russell Frye identified the importance of environmental considerations in mergers and acquisitions and in purchasing and financing real
property long before most lawyers recognized the need to address these issues. In 1978, information he helped uncover about
Occidental Petroleum’s undisclosed liability for the Love Canal site was a key element of Mead Corporation’s successful defense of a
hostile Occidental take-over bid that became a business school model study. While heading the environmental practice world-wide
at New York based Chadbourne & Parke for 10 years, Mr. Frye represented both developers and private and public lenders in project
finance of power plants, chemical plants, oil fields, and other large infrastructure projects all over the world.
When Brazil’s national oil company sought for the first time to obtain foreign funding for a new offshore oil field, Russ helped it meet
the environmental concerns of U.S. and European lenders. When one of the world’s largest commercial banks sought to dispose of
almost 30 properties acquired in a sale-leaseback financing for one of the largest U.S. retailers, it called on Mr. Frye to develop a
program to sell off its interests while retaining the least possible environmental liability. Mr. Frye also has participated in the
development of environmental policies of development banks and export credit agencies (ECAs), both by filing comments on
proposed policies and guidelines for borrowers and by advising development banks and ECAs directly in transactions and in the
development of their policies.
In addition to conducting environmental due diligence and drafting and negotiating contract provisions for various types of
transactions, Mr. Frye also has experience with arbitration and litigation of multi-million-dollar disputes over the allocation of
environmental liabilities in past transactions. With over 25 years of experience in transactions both large and small, Mr. Frye has been
called in numerous times to assist other law firms with the environmental issues in transactions those firms were handling. He also
has assisted clients regularly in assessing environmental risks for businesses outside the U.S., often making use of the extensive
contacts he gained in five years as Chairman and Vice-Chair of the International Bar Association’s Environmental Law Committee.
Chemical Regulation/Health & Safety
Russ Frye began his legal career in 1976 as a law clerk analyzing the just-enacted Toxic Substances Control Act (TSCA) and Hazardous
Materials Transportation Act (HMTA). Throughout the ensuing years, much of his work has focused on the assessment and regulation of
risks to human health and the environment caused by exposure to chemical substances. Russ has advised chemical manufacturers and
trade associations on TSCA reporting requirements, including substantial risk reporting under TSCA section 8(e), as well as non-
regulatory concerns such as product stewardship and guarding against claims or of injury to human health (or fear of injury) associated
with specific chemicals.
Mr. Frye is very familiar with the principals of risk assessment, having assisted clients in arranging for and assessing the implications of
risk assessments concerning a wide variety of chemicals and activities. He also has helped clients design animal feeding or inhalation
studies, skin irritation studies, and in vitro tests. Mr. Frye is familiar with the approaches various regulatory agencies and scientific
groups take to assessing and classifying chemicals. He has commented on risk assessments prepared by EPA, FDA, USDA, and others, as
well as commenting on EPA guidelines for conducting various types of risk assessments. Mr. Frye also has considerable experience
with the design, implementation, and interpretation of epidemiology studies. He maintains a close working relationship with a
number of toxicologists and biostatisticians.
A special subset of chemical regulation concerns exposure to chemicals in the workplace. Mr. Frye has assisted clients with a number
of claims of adverse effects from workplace exposures, and he has advised clients on workplace and employee health monitoring,
compliance with Occupational Safety and Health Administration (OSHA) regulations, preparation of Material Safety Data Sheets
(MSDSs), and risk communication to employees.
Environmental Policy and Environmental Management Systems
Having worked exclusively in the environmental field since the mid-1970s, Russell Frye has a wealth of experience with
environmental policy and environmental management systems. Importantly, that experience is not just theoretical: because Mr. Frye
has represented corporations and municipalities in all matter of enforcement actions and investigations, as well as dealing with
concerns of the public on both local and national levels, he has a real-world understanding of how companies have succeeded and
failed in managing their environmental responsibilities. Russ has helped companies develop corporate environmental polices,
reference manuals and training materials, environmental auditing questionnaires and procedures, and all aspects of environmental
management systems. Mr. Frye has performed environmental audits at dozens of facilities, from basic warehouse or storage sites to
the most complex chemical plants and integrated pulp and paper mills.
After working in the late 1970s on one of the first cases concerning inadequate disclosure of environmental liabilities (involving the
infamous “Love Canal”), Mr. Frye became especially sensitive to the importance of good internal corporate reporting and accurate
and sufficient disclosure to investors and financial regulatory agencies, such as the Securities and Exchange Commission (SEC). He
regularly advises companies on legal requirements and practical considerations concerning disclosure of environmental liabilities to
environmental regulators, financial regulators, investors, and the public. Russ helps clients draft statements about environmental
risks, enforcement actions, and potential liabilities for annual reports to shareholders, quarterly and annual reports to the SEC, initial
public offerings, press releases, and employee newsletters.
Government and Public Relations
Businesses outside of Washington think of the legislative branch much more often as a source of their legal problems than as a route
to solving those problems. Companies often underestimate their ability both to affect potentially problematic legislation and to use
the legislative branch to address problems with laws and regulations, as well as with their implementation.
Russell Frye understands how the political process works and has a record of successfully advocating his clients’ interests before
Congress, the Executive Office of the President, and a number of administrative agencies. He has drafted legislation and report
language or floor colloquy for members of Congress and their staff, helped clients keep members and their staff apprised of important
regulatory developments, testified at public hearings and drafted testimony and advised clients on appearances before congressional
committees, and the like. In addition, Mr. Frye has helped clients use less-conventional tools, such as riders on appropriations bills,
enquiries from members of Congress, joint resolutions, and requests for reports from members of Congress to further his clients’
interests. Russ also sometimes acts as the “eyes and ears” in Washington for companies (and law firms) without a presence in
Washington, D.C., monitoring legislative or regulatory developments and maintaining contacts. Russ also has close relations with a
number of full-time lobbyists, including Collier Shannon Scott’s Tom Bliley, former Chairman of the powerful House Energy and
Commerce Committee.
Litigation and Alternative Dispute Resolution
Russell Frye has represented clients in a wide variety of types of litigation in state and federal courts and before administrative
tribunals. This work has included discovery and motions practice and trials on the merits, as well as appellate practice, both appeals
from lower courts and direct review of agency action in the courts of appeals. While most of his cases have been in the
environmental field, he is very familiar with principles of administrative law and civil procedure that arise in many types of cases.
He has represented both defendants and plaintiffs in “toxic tort” actions and in breach of contract and cost recovery actions. He is
familiar with criminal procedure, as well, having worked for a county prosecutor’s office during law school and having represented
clients in grand jury investigations and criminal prosecutions and settlements.
Mr. Frye has successfully litigated numerous matters of first impression, concerning issues such as application of Endangered Species
Act requirements to EPA approval of state wastewater permitting programs, availability of attorneys fees for private citizen
participation in government air enforcement actions, Department of Agriculture procedures for protecting against Mad Cow disease,
EPA’s interpretation of Best Conventional Technology requirements of the Clean Water Act, and others. Mr. Frye has particular
expertise in appellate litigation, having participated in dozens of cases in the federal courts of appeals for numerous judicial circuits
and having filed amicus curiae briefs in half a dozen Supreme Court cases. Often these cases have involved judicial review of agency
rulemaking (or failure to act).
Recognizing that litigation is often an inefficient and unpredictable way of resolving disputes, Mr. Frye has a record of successfully
negotiating favorable settlements with government agencies, other corporations, and private citizens and groups. He also has been
involved often in alternative dispute resolution (ADR) procedures, ranging from court-ordered mediation to the arbitration of cleanup
claims for multiple facilities. In addition to representing clients in ADR proceedings, Mr. Frye is available to serve as a mediator or
arbitrator in cases involving environmental, health, safety, and natural resources cases.
Solid and Hazardous Waste
Russell Frye has addressed solid and hazardous waste issues from a variety of perspectives. He has participated in the technical
justification, state and local permitting, and public relations for numerous commercial and industrial landfills. He has represented
operators of hazardous waste treatment, storage, and disposal facilities, including hazardous waste landfills. He has successfully
challenged the reopening of municipal solid waste incinerators and the application of solid and hazardous waste incinerator
requirements to industrial boilers. He participated in the development of regulatory requirements for the use of wastewater
treatment sludge as landfill cover, surface mine reclamation cover, and raw material for commercial products. He has advised many
companies on the identification and management of hazardous wastes, and defended them in enforcement actions, including a
criminal hazardous waste investigation involving over 100 grand jury witnesses.
Mr. Frye also has worked on a wide variety of matters concerning remediation of existing and closed facilities where solid and
hazardous waste (including liquid waste) have been managed. This has included representing numerous generators in some of the
first “Superfund” cases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), defending
manufacturers against claims that their waste handling practices resulted in property damage or risks to human health, negotiating
commercial and regulatory agreements that allowed the redevelopment of industrial property, and so forth.
In the course of working on these and other solid and hazardous waste management issues, Mr. Frye has developed valuable
knowledge of the science of subsurface, hydrogeological investigations and monitoring; the construction and closure of landfills and
surface impoundments; the operation of thermal destruction equipment; and testing and analysis of solid wastes. He has participated
in numerous EPA rulemakings regarding the identification and management of hazardous wastes, lobbied Congress on application of
hazardous waste rules to surface impoundments, and represented clients in numerous state proceedings to develop solid and
hazardous waste management regulations and permitting of individual facilities.
Water and Wastewater
Russell Frye has been particularly active in the field of water pollution. In the early 1980s he played a critical role in litigation that
eliminated “treatment for treatment's sake” of non-toxic “conventional” water pollutants, forcing EPA to withdraw rules that would
have cost the paper industry $2.5 billion. He successfully argued an industry challenge to EPA’s Water Quality Guidance for the Great
Lakes System in the federal court of appeals for the District of Columbia Circuit that resulted in a 1996 remand of EPA’s ban on mixing
zones for persistent, bioaccumulative substances. In 1998 he successfully argued a case in the federal court of appeals for the Fifth
Circuit that prevented expansion of the federal Endangered Species Act to state discharge permitting programs, in what Inside EPA
termed “a landmark decision.” Mr. Frye was actively involved in lobbying Congress on 1980 and 1987 amendments to the Clean Water
Act and the efforts in 1995 that resulted in comprehensive Clean Water Act reform legislation being passed by the House of
Representatives.
Mr. Frye is particularly familiar with jurisdictional issues under the federal Clean Water Act, such as the regulation of nonpoint sources
of water pollution and the interrelationship of nonpoint source controls and controls on point source dischargers. He has been
involved in several efforts by EPA, the Corps of Engineers, TVA, and environmental groups to link point source discharge permits to
nonpoint source impacts of third-party suppliers. He has represented businesses and trade associations in litigation at all levels,
including the U. S. Supreme Court, concerning application of the definition of “waters of the United States” to isolated wetlands,
privately owned ponds, wastewater treatment lagoons, and the like. This has included, inter alia, participating as an amicus curiae
in several cases concerning man-made storage and evaporation ponds in California and as a party in cases concerning ephemeral playa
lakes in Arizona and New Mexico.
Mr. Frye has participated in EPA rulemaking for effluent guidelines and pretreatment standards in the pulp & paper, wood products,
foundry, and metal products and machinery sectors. He has been the primary author of industry comments on EPA proposed standards
for cooling water intake structures, water quality standards, TMDLs, permit application forms, permitting regulations, general
pretreatment standards, stormwater rules, CZMA management measures, individual water quality criteria and criteria methodologies,
use of whole effluent toxicity test data in permitting and enforcement, and other rulemakings, as well as various EPA guidance
documents. In the late 1970s and 1980s he was involved in negotiations with EPA over the “Consolidated Permit Rules” and later over
the de-consolidated NPDES permitting portion of those rules. He also led industry efforts challenging EPA’s approach to interpreting
“narrative” water quality criteria to impose numerical pollutant discharge limitations and challenging water quality criteria for several
individual pollutants. He has been involved in federal appellate litigation in the Ninth Circuit questioning EPA’s authority to approve
state water quality standards that exempt nonpoint sources and mixing zones from the state’s antidegradation policy, and in
challenges in several circuits to state water quality standards and to approval of a state NPDES permitting programs on Endangered
Species Act grounds.
In addition to this regulatory and policy work, Mr. Frye has very extensive experience in the practical application of water pollution
requirements. He has negotiated and/or appealed over 20 NPDES permits, including a two-week evidentiary hearing on behalf of a
municipality, successfully challenging water-quality-based nitrification/denitrification requirements. He also has been involved in
several judicial challenges to EPA vetoes of state NPDES permits. He has defended or avoided citizen suits addressing alleged Clean
Water Act violations for a dozen or more industrial and municipal facilities. In 1987, Mr. Frye guided a client through what was
perhaps the first use of protections enacted in the Water Quality Act of 1987, precluding a threatened citizen suit by the Sierra Club
through use of a state enforcement action. He has filed amicus curiae briefs in the Supreme Court and the U.S. Courts of Appeals for
the Ninth and Tenth Circuits in support of limitations on CWA citizen suits.
Mr. Frye is the author of Clean Water Act Compliance Handbook (John Wiley & Sons, 1989); a co-author of Clean Water Act Permit
Guidance Manual (Executive Enterprises, 1984) and Clean Water Act Update (Executive Enterprises, 1987); and a contributing author
to Water Pollution: Law and Liability (Graham & Trotman, 1993), as well as an author or co-author of numerous articles on water and
wastewater in legal and technical journals.
For more specific examples of matters Russ Frye has worked on and the types of EHS services that FryeLaw PLLC
can provide, click here.
For a listing of the business and government sectors with which Russ Frye has particular familiarity, click here.
Implementation Plans (SIPs), as well as litigation over alleged ambient impacts of air emissions. He has both negotiated settlements
with and litigated against federal and state governments as well as private citizen groups. In 2000 he won a case of first impression in
the U.S. Court of Appeals for the Ninth Circuit, holding that environmental activist groups are not entitled to attorney’s fees under
the Clean Air Act when they intervene in a government enforcement action.
Mr. Frye also has been involved at all levels of policy making in the air pollution field, from pursuing individual variances as SIP
revisions, to lobbying Congress on amendments to the Clean Air Act. He represented independent power producer interests, for
example, in the development of innovative provisions in the Clean Air Act creating limited SO2 emissions allowances for the control
of acid rain. Subsequently, he commented on EPA rules implementing that legislation and challenged those rules in court, resulting in
EPA’s capitulation on the eve of oral argument. His extensive familiarity with the operation of many types of air pollution sources
and with available pollution control technology, as well as the principles of ambient air quality monitoring and modeling, have
enabled him to provide effective advocacy for clients in many different industrial sectors. He has participated in a number of the
key cases concerning implementation of the Clean Air Act, such as the “WEPCo” case concerning PSD permitting and New Source
Performance Standards (NSPS). He came up with an innovative strategy, for example, of using EPA’s failure fully to implement a 14-
year-old settlement agreement as a way to put pressure on EPA that ultimately resulted in major revisions to the PSD/NSR program in
December 2002.
Mr. Frye has participated in rulemaking and subsequent judicial review for Maximum Achievable Control Technology (MACT) standards
for emissions of hazardous air pollutants for a variety of industry sectors, and he regularly advises clients on the intricacies of
complying with MACT requirements. He also represented the paper industry in one of the first petitions to remove an air pollutant
from the list of hazardous air pollutants and in the only district court and appellant litigation to date concerning hazardous air
pollutant de-listing.
In recent years, Russ Frye has been actively involved in representing business interests in connection with concerns about global
climate change. For example, Mr. Frye represented a coalition of 13 trade associations and business organizations that intervened in
the Court of appeals for the District of Columbia Circuit in support of EPA’s conclusion that the Clean Air Act does not authorize
regulation of emissions from motor vehicles for the purpose of mitigating global climate change. He has advised numerous companies
on their strategies for addressing the emerging issues of climate change and their communications to investors and the public about
the effect of climate change concerns and legislation on their businesses.
Mr. Frye has published articles on air pollution permitting in numerous publications, including the Journal of the Air Pollution Control
Association, Pollution Engineering, Journal of Environmental Permitting, Modern Casting, and the National Law Journal.
Business Transactions, Finance and Real Estate
Russell Frye identified the importance of environmental considerations in mergers and acquisitions and in purchasing and financing real
property long before most lawyers recognized the need to address these issues. In 1978, information he helped uncover about
Occidental Petroleum’s undisclosed liability for the Love Canal site was a key element of Mead Corporation’s successful defense of a
hostile Occidental take-over bid that became a business school model study. While heading the environmental practice world-wide
at New York based Chadbourne & Parke for 10 years, Mr. Frye represented both developers and private and public lenders in project
finance of power plants, chemical plants, oil fields, and other large infrastructure projects all over the world.
When Brazil’s national oil company sought for the first time to obtain foreign funding for a new offshore oil field, Russ helped it meet
the environmental concerns of U.S. and European lenders. When one of the world’s largest commercial banks sought to dispose of
almost 30 properties acquired in a sale-leaseback financing for one of the largest U.S. retailers, it called on Mr. Frye to develop a
program to sell off its interests while retaining the least possible environmental liability. Mr. Frye also has participated in the
development of environmental policies of development banks and export credit agencies (ECAs), both by filing comments on
proposed policies and guidelines for borrowers and by advising development banks and ECAs directly in transactions and in the
development of their policies.
In addition to conducting environmental due diligence and drafting and negotiating contract provisions for various types of
transactions, Mr. Frye also has experience with arbitration and litigation of multi-million-dollar disputes over the allocation of
environmental liabilities in past transactions. With over 25 years of experience in transactions both large and small, Mr. Frye has been
called in numerous times to assist other law firms with the environmental issues in transactions those firms were handling. He also
has assisted clients regularly in assessing environmental risks for businesses outside the U.S., often making use of the extensive
contacts he gained in five years as Chairman and Vice-Chair of the International Bar Association’s Environmental Law Committee.
Chemical Regulation/Health & Safety
Russ Frye began his legal career in 1976 as a law clerk analyzing the just-enacted Toxic Substances Control Act (TSCA) and Hazardous
Materials Transportation Act (HMTA). Throughout the ensuing years, much of his work has focused on the assessment and regulation of
risks to human health and the environment caused by exposure to chemical substances. Russ has advised chemical manufacturers and
trade associations on TSCA reporting requirements, including substantial risk reporting under TSCA section 8(e), as well as non-
regulatory concerns such as product stewardship and guarding against claims or of injury to human health (or fear of injury) associated
with specific chemicals.
Mr. Frye is very familiar with the principals of risk assessment, having assisted clients in arranging for and assessing the implications of
risk assessments concerning a wide variety of chemicals and activities. He also has helped clients design animal feeding or inhalation
studies, skin irritation studies, and in vitro tests. Mr. Frye is familiar with the approaches various regulatory agencies and scientific
groups take to assessing and classifying chemicals. He has commented on risk assessments prepared by EPA, FDA, USDA, and others, as
well as commenting on EPA guidelines for conducting various types of risk assessments. Mr. Frye also has considerable experience
with the design, implementation, and interpretation of epidemiology studies. He maintains a close working relationship with a
number of toxicologists and biostatisticians.
A special subset of chemical regulation concerns exposure to chemicals in the workplace. Mr. Frye has assisted clients with a number
of claims of adverse effects from workplace exposures, and he has advised clients on workplace and employee health monitoring,
compliance with Occupational Safety and Health Administration (OSHA) regulations, preparation of Material Safety Data Sheets
(MSDSs), and risk communication to employees.
Environmental Policy and Environmental Management Systems
Having worked exclusively in the environmental field since the mid-1970s, Russell Frye has a wealth of experience with
environmental policy and environmental management systems. Importantly, that experience is not just theoretical: because Mr. Frye
has represented corporations and municipalities in all matter of enforcement actions and investigations, as well as dealing with
concerns of the public on both local and national levels, he has a real-world understanding of how companies have succeeded and
failed in managing their environmental responsibilities. Russ has helped companies develop corporate environmental polices,
reference manuals and training materials, environmental auditing questionnaires and procedures, and all aspects of environmental
management systems. Mr. Frye has performed environmental audits at dozens of facilities, from basic warehouse or storage sites to
the most complex chemical plants and integrated pulp and paper mills.
After working in the late 1970s on one of the first cases concerning inadequate disclosure of environmental liabilities (involving the
infamous “Love Canal”), Mr. Frye became especially sensitive to the importance of good internal corporate reporting and accurate
and sufficient disclosure to investors and financial regulatory agencies, such as the Securities and Exchange Commission (SEC). He
regularly advises companies on legal requirements and practical considerations concerning disclosure of environmental liabilities to
environmental regulators, financial regulators, investors, and the public. Russ helps clients draft statements about environmental
risks, enforcement actions, and potential liabilities for annual reports to shareholders, quarterly and annual reports to the SEC, initial
public offerings, press releases, and employee newsletters.
Government and Public Relations
Businesses outside of Washington think of the legislative branch much more often as a source of their legal problems than as a route
to solving those problems. Companies often underestimate their ability both to affect potentially problematic legislation and to use
the legislative branch to address problems with laws and regulations, as well as with their implementation.
Russell Frye understands how the political process works and has a record of successfully advocating his clients’ interests before
Congress, the Executive Office of the President, and a number of administrative agencies. He has drafted legislation and report
language or floor colloquy for members of Congress and their staff, helped clients keep members and their staff apprised of important
regulatory developments, testified at public hearings and drafted testimony and advised clients on appearances before congressional
committees, and the like. In addition, Mr. Frye has helped clients use less-conventional tools, such as riders on appropriations bills,
enquiries from members of Congress, joint resolutions, and requests for reports from members of Congress to further his clients’
interests. Russ also sometimes acts as the “eyes and ears” in Washington for companies (and law firms) without a presence in
Washington, D.C., monitoring legislative or regulatory developments and maintaining contacts. Russ also has close relations with a
number of full-time lobbyists, including Collier Shannon Scott’s Tom Bliley, former Chairman of the powerful House Energy and
Commerce Committee.
Litigation and Alternative Dispute Resolution
Russell Frye has represented clients in a wide variety of types of litigation in state and federal courts and before administrative
tribunals. This work has included discovery and motions practice and trials on the merits, as well as appellate practice, both appeals
from lower courts and direct review of agency action in the courts of appeals. While most of his cases have been in the
environmental field, he is very familiar with principles of administrative law and civil procedure that arise in many types of cases.
He has represented both defendants and plaintiffs in “toxic tort” actions and in breach of contract and cost recovery actions. He is
familiar with criminal procedure, as well, having worked for a county prosecutor’s office during law school and having represented
clients in grand jury investigations and criminal prosecutions and settlements.
Mr. Frye has successfully litigated numerous matters of first impression, concerning issues such as application of Endangered Species
Act requirements to EPA approval of state wastewater permitting programs, availability of attorneys fees for private citizen
participation in government air enforcement actions, Department of Agriculture procedures for protecting against Mad Cow disease,
EPA’s interpretation of Best Conventional Technology requirements of the Clean Water Act, and others. Mr. Frye has particular
expertise in appellate litigation, having participated in dozens of cases in the federal courts of appeals for numerous judicial circuits
and having filed amicus curiae briefs in half a dozen Supreme Court cases. Often these cases have involved judicial review of agency
rulemaking (or failure to act).
Recognizing that litigation is often an inefficient and unpredictable way of resolving disputes, Mr. Frye has a record of successfully
negotiating favorable settlements with government agencies, other corporations, and private citizens and groups. He also has been
involved often in alternative dispute resolution (ADR) procedures, ranging from court-ordered mediation to the arbitration of cleanup
claims for multiple facilities. In addition to representing clients in ADR proceedings, Mr. Frye is available to serve as a mediator or
arbitrator in cases involving environmental, health, safety, and natural resources cases.
Solid and Hazardous Waste
Russell Frye has addressed solid and hazardous waste issues from a variety of perspectives. He has participated in the technical
justification, state and local permitting, and public relations for numerous commercial and industrial landfills. He has represented
operators of hazardous waste treatment, storage, and disposal facilities, including hazardous waste landfills. He has successfully
challenged the reopening of municipal solid waste incinerators and the application of solid and hazardous waste incinerator
requirements to industrial boilers. He participated in the development of regulatory requirements for the use of wastewater
treatment sludge as landfill cover, surface mine reclamation cover, and raw material for commercial products. He has advised many
companies on the identification and management of hazardous wastes, and defended them in enforcement actions, including a
criminal hazardous waste investigation involving over 100 grand jury witnesses.
Mr. Frye also has worked on a wide variety of matters concerning remediation of existing and closed facilities where solid and
hazardous waste (including liquid waste) have been managed. This has included representing numerous generators in some of the
first “Superfund” cases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), defending
manufacturers against claims that their waste handling practices resulted in property damage or risks to human health, negotiating
commercial and regulatory agreements that allowed the redevelopment of industrial property, and so forth.
In the course of working on these and other solid and hazardous waste management issues, Mr. Frye has developed valuable
knowledge of the science of subsurface, hydrogeological investigations and monitoring; the construction and closure of landfills and
surface impoundments; the operation of thermal destruction equipment; and testing and analysis of solid wastes. He has participated
in numerous EPA rulemakings regarding the identification and management of hazardous wastes, lobbied Congress on application of
hazardous waste rules to surface impoundments, and represented clients in numerous state proceedings to develop solid and
hazardous waste management regulations and permitting of individual facilities.
Water and Wastewater
Russell Frye has been particularly active in the field of water pollution. In the early 1980s he played a critical role in litigation that
eliminated “treatment for treatment's sake” of non-toxic “conventional” water pollutants, forcing EPA to withdraw rules that would
have cost the paper industry $2.5 billion. He successfully argued an industry challenge to EPA’s Water Quality Guidance for the Great
Lakes System in the federal court of appeals for the District of Columbia Circuit that resulted in a 1996 remand of EPA’s ban on mixing
zones for persistent, bioaccumulative substances. In 1998 he successfully argued a case in the federal court of appeals for the Fifth
Circuit that prevented expansion of the federal Endangered Species Act to state discharge permitting programs, in what Inside EPA
termed “a landmark decision.” Mr. Frye was actively involved in lobbying Congress on 1980 and 1987 amendments to the Clean Water
Act and the efforts in 1995 that resulted in comprehensive Clean Water Act reform legislation being passed by the House of
Representatives.
Mr. Frye is particularly familiar with jurisdictional issues under the federal Clean Water Act, such as the regulation of nonpoint sources
of water pollution and the interrelationship of nonpoint source controls and controls on point source dischargers. He has been
involved in several efforts by EPA, the Corps of Engineers, TVA, and environmental groups to link point source discharge permits to
nonpoint source impacts of third-party suppliers. He has represented businesses and trade associations in litigation at all levels,
including the U. S. Supreme Court, concerning application of the definition of “waters of the United States” to isolated wetlands,
privately owned ponds, wastewater treatment lagoons, and the like. This has included, inter alia, participating as an amicus curiae
in several cases concerning man-made storage and evaporation ponds in California and as a party in cases concerning ephemeral playa
lakes in Arizona and New Mexico.
Mr. Frye has participated in EPA rulemaking for effluent guidelines and pretreatment standards in the pulp & paper, wood products,
foundry, and metal products and machinery sectors. He has been the primary author of industry comments on EPA proposed standards
for cooling water intake structures, water quality standards, TMDLs, permit application forms, permitting regulations, general
pretreatment standards, stormwater rules, CZMA management measures, individual water quality criteria and criteria methodologies,
use of whole effluent toxicity test data in permitting and enforcement, and other rulemakings, as well as various EPA guidance
documents. In the late 1970s and 1980s he was involved in negotiations with EPA over the “Consolidated Permit Rules” and later over
the de-consolidated NPDES permitting portion of those rules. He also led industry efforts challenging EPA’s approach to interpreting
“narrative” water quality criteria to impose numerical pollutant discharge limitations and challenging water quality criteria for several
individual pollutants. He has been involved in federal appellate litigation in the Ninth Circuit questioning EPA’s authority to approve
state water quality standards that exempt nonpoint sources and mixing zones from the state’s antidegradation policy, and in
challenges in several circuits to state water quality standards and to approval of a state NPDES permitting programs on Endangered
Species Act grounds.
In addition to this regulatory and policy work, Mr. Frye has very extensive experience in the practical application of water pollution
requirements. He has negotiated and/or appealed over 20 NPDES permits, including a two-week evidentiary hearing on behalf of a
municipality, successfully challenging water-quality-based nitrification/denitrification requirements. He also has been involved in
several judicial challenges to EPA vetoes of state NPDES permits. He has defended or avoided citizen suits addressing alleged Clean
Water Act violations for a dozen or more industrial and municipal facilities. In 1987, Mr. Frye guided a client through what was
perhaps the first use of protections enacted in the Water Quality Act of 1987, precluding a threatened citizen suit by the Sierra Club
through use of a state enforcement action. He has filed amicus curiae briefs in the Supreme Court and the U.S. Courts of Appeals for
the Ninth and Tenth Circuits in support of limitations on CWA citizen suits.
Mr. Frye is the author of Clean Water Act Compliance Handbook (John Wiley & Sons, 1989); a co-author of Clean Water Act Permit
Guidance Manual (Executive Enterprises, 1984) and Clean Water Act Update (Executive Enterprises, 1987); and a contributing author
to Water Pollution: Law and Liability (Graham & Trotman, 1993), as well as an author or co-author of numerous articles on water and
wastewater in legal and technical journals.
For more specific examples of matters Russ Frye has worked on and the types of EHS services that FryeLaw PLLC
can provide, click here.
For a listing of the business and government sectors with which Russ Frye has particular familiarity, click here.
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