Environmental

Among law firms based in the Northwest, Ball Janik’s environmental practice group is unique.  We offer a complete, multi-disciplinary array of skilled services in the environmental and natural resources field, ranging from a well established government affairs practice based in Washington, D.C. to complex litigation and transactional practices in the firm’s Portland, Bend, Oregon and Seattle, Washington offices.

Energy Facility Permitting

The firm has represented energy companies in obtaining permits for the development of generating facilities and related transmission lines and pipelines.  Our representation has included successful advocacy for our clients in state and local legislative proceedings, administrative rulemakings, administrative contested case hearings, and an appeal to the Oregon Supreme Court. 

• Wind Power Facilities.  The firm has represented developers with respect to evaluating permitting issues for wind power projects and in site certificate proceedings with the Oregon Department of Energy and the Oregon Energy Facility Siting Council (EFSC).
• Natural Gas-fired Generating Plants.  The firm has represented energy facility developers in obtaining site certificates from the EFSC for several natural gas-fired generating facilities and related transmission line and pipeline facilities, including the Hermiston Generating Plant and Portland General Electric Company’s Port Westward Generating Project.  Our representation on these projects has included negotiating agreements and obtaining permits to ensure the development of key public infrastructure, including transportation system improvements, water supply and wastewater disposal.

Environmental Permitting Experience

• Wetlands Issues.  The firm's attorneys have represented developers in obtaining state and federal permits for alteration of wetlands and in negotiating resolutions of alleged violations of wetland permitting requirements. Our work has included successful defense of an administrative contested case before a hearings officer of the Oregon Department of State Lands and negotiations with the Army Corps of Engineers and Oregon Department of State Lands for wetlands mitigation in conjunction with "after the fact" permitting of wetland fill.
• Water Rights.  We have represented numerous clients in the evaluation of water rights and the permitting, perfection and transfer of water rights, including successful defense of an administrative contested case before the Oregon Water Resources Commission.  
• Ski Area Permitting.  The firm has represented a major Northwest ski area in the development of new facilities and the approval and defense of a new ski area master plan.  Our representation has included successful defense of NEPA documents in administrative appeals and before the federal courts.
• Timber Mill Operations.  The firm represented a large Pacific Northwest timber company on environmental issues related to the operation of its mill facilities, including Clean Air Act and NPDES permit issues.  Our work also included the successful defense, in U.S. District Court and the Ninth Circuit, of several federal timber sales.
• Land Use Practice Group.  Our Land Use Practice Group engages in a broad range of permit related work.

Cleanup Disputes

The firm has prosecuted and defended a variety of cleanup cases in the state and federal courts. 

• State and Federal Superfund Act Claims.  The firm has represented a number of clients in environmental contribution cases in federal and state courts in Oregon and Washington, including claims involving hydrocarbon and solvent contamination.  For example, the firm recently represented a Washington state manufacturer in federal court cleanup litigation and state regulatory proceedings regarding regional contamination of groundwater with chlorinated solvents, including the defense of claims seeking tens of millions of dollars.
• Railyard cleanup.  The firm represented a developer in federal litigation against a railroad whose operations had led to significant hydrocarbon contamination, obtaining a unique summary judgment ruling in the developer’s favor.
• EPA Claims.  The firm recently concluded the successful defense of CERCLA claims by the EPA against a trucking company.
• Clean Water Act and Natural Resource Damage Claims.  The firm represents a transportation company with regard to claims under the Clean Water Act, including a Natural Resource Damages claim.
• Vapor Intrusion.  The firm has addressed regulatory concerns arising from indoor air issues in industrial and residential structures.
• Bankruptcy Cases.  The firm has represented bankrupt companies in cleanup disputes resolved in the bankruptcy courts, where the firm’s bankruptcy department has provided bankruptcy related solutions to cleanup issues.

Insurance Recovery

The firm has represented clients in a number of insurance coverage matters, many of which have involved environmental matters.  Ball Janik attorneys have handled insurance coverage issues arising form underlying claims under CERCLA and its state law counterparts, RCRA, and the Clean Water Act, including claims for cleanup costs and for Natural Resource Damages.  We have successfully pursued coverage for claims asserted by regulatory bodies and by private parties, and have recovered millions of dollars for our policyholder clients, including the following matters:

• Hylebos Waterway Superfund Site.  The firm successfully represented a potentially responsible party in pursuing insurance coverage from domestic and London market insurers for claims asserted by the EPA and by the Natural Resource Trustees for Natural Resource Damages.
• Milwaukie International Way Site.  The firm successfully represented a defendant and potentially responsible party in seeking insurance coverage for claims asserted by the Oregon DEQ and private parties under state and federal law for substantial chlorinated solvent contamination.
• Tualatin River Contamination.  The firm successfully tried to jury Oregon's first environmental insurance coverage case, defeating the insurer's attempt to invoke the so-called "sudden and accidental" pollution exclusion.
• Natural Resource Damages.  On behalf of our client, the firm successfully negotiated the settlement Natural Resource Damages claims arising from a gasoline spill and obtained 100% insurer funding for the settlement.
• Amicus Briefing.  On behalf of Associated Oregon Industries and other firm clients, the firm has successfully urged the Oregon Supreme Court to issue multiple pro-policyholder interpretations of standard-form insurance polices in the environmental insurance context.
• Legislative Efforts.  Lawyers from the firm have been active in helping persuade the Oregon State Legislature to enact statutory provisions that assist policyholders who face environmental actions in recovering the clean-up costs from their insurers.

Acquisitions and Redevelopment of Contaminated Property

Firm lawyers have counseled clients in the acquisition and development of numerous “brownfield” sites, including some of the most significant projects in the Portland metropolitan area. 

• South Waterfront District.  The firm represents several major property owners in the redevelopment of land in Portland’s South Waterfront District.  Our representation includes advising clients with respect to cleanup under DEQ’s Independent Cleanup Pathway as well as compliance with Consent Decrees that govern cleanup and redevelopment of certain sites.
• Hoyt Street Yards.  The firm provides comprehensive advice to the developer of this 26-acre former railyard, which the client is now transforming into a new high-density mixed-use neighborhood.  The firm’s work includes negotiation and implementation of  a Consent Decree with the Oregon Department of Environmental Quality to address site remediation and redevelopment, negotiation of a Development Agreement with the City of Portland, which helped lead to significant new public infrastructure serving the area, and representation of the developer in litigation with the former owner, a railroad, regarding cleanup issues.
• Cobbs Quarry.  The firm represented developers of a residential subdivision and a retail site on a former quarry site in Beaverton, Oregon.  This work included the adoption of the first record of decision under Oregon Department of Environmental Quality rules for remediation of a site affected by methane.
• Bridgeport Village.  The firm represented the developer of this mixed-use 600,000 square foot project located in Tualatin and Tigard, Oregon on a site that was formerly used as a quarry.  The firm guided the client through the regulatory process for remediating the methane at the site.
• Timber Mill Redevelopment.  The firm represented a Central Oregon developer in connection with the redevelopment a large riverfront mill site into a highly successful new district of commercial and residential uses.  The firm represents a development corporation in the acquisition and redevelopment of a former mill and log export site on the Southern Oregon coast, including extensive environmental due diligence, negotiation of environmental insurance coverage, and evaluation of cleanup strategy for commercial re-use and leasing of the site.
• Other projects.  The firm regularly works with clients in the purchase, sale and redevelopment of many different kinds of contaminated sites.  Our work has included many smaller projects, including representing the developer of a contaminated former trucking facility, where the firm negotiated a first of its kind agreement with the Oregon Department of Environmental Qualify to limit the developer’s liability for past environmental contamination, representing a property owner with respect to lead contamination in a former metal foundry site, and representing numerous developers and industrial, commercial and residential property owners in addressing issues associated with leaking underground storage tanks.

Environmental Due Diligence

The firm regularly represents clients in environmental due diligence reviews for real estate and corporate transactions.  Our representation includes evaluation of environmental risks and the development of regulatory and transactional strategies to minimize, assign and quantify environmental risks in order to protect and enhance the value of real property and other assets.  Transactions include:

• Wafer Fab Plant.  The firm represented an international high technology manufacturer with respect to numerous environmental due diligence issues involved in the sale of a large silicon wafer fabrication facility, including environmental permit compliance and permit transfers, wetlands permitting, and Level 1 and Level 2 environmental site investigations.
• Timber Facilities.  The firm represented a large Northwest timber company in the acquisition and sale of sawmills and timberlands in Oregon, Washington, Idaho and Montana, including due diligence review of hazardous substances cleanup, permitting and compliance, and water rights issues involved in the transactions.
• Energy Facility Purchasing.  The firm advised an investment firm regarding environmental compliance issues that would be involved in the purchase of power plants being sold as part of bankruptcy proceedings.

Government Affairs

Ball Janik’s Federal Government Representation practice group has extensive experience with projects relating to the environment and natural resources.  Based in Washington, D.C., the firm’s legislative and federal administrative law practice assists clients with appropriations and authorization matters, and provides regulatory and policy advocacy before a broad array of Federal agencies.  We represent numerous sate agencies, counties, cities and private sector clients before the relevant appropriations, natural resource and environmental committees of Congress.  Our natural resources practice focuses on the conservation of renewable energy, timber, and fisheries.  The firm promotes sustainable development of our transportation infrastructure, focusing on highways, water resource projects, and ports infrastructure.  Our defense practice reflects experience in the remediation and transfer of contaminated defense properties under the department’s base realignment and closure initiative.  Examples of our capabilities include:

A.    Obtaining Federal Financial Assistance.  The group obtained federal funding for sustainable development and natural resource projects, such as:

• Municipalities Water Resource and Infrastructure Projects – Ball Janik successfully obtained $12.6 million in funding for a large combined sewer overflow project for a large northwest city.   The project involved appropriations over a ten year period, requiring the Federal regulatory, legislative and state level engagement.  In similar fashion, the firm consistently obtains multi-million dollar appropriations for reservoir upgrades and for responsible transportation “greenway” projects.
• Navigation Improvements – We have a comprehensive practice assisting ports and port authorities obtain authorizations and appropriations, funding projects executed by the U.S. Army Corps of Engineers.  Ball Janik gained funding for federal jetty system upgrades, port infrastructure for a port and its economic base.  We further helped an Oregon community and the Corps prevails during a contentious state permitting exercise involving the construction of a structure on a state-controlled beach.
• Aquatic Ecosystem Restoration Projects – Ball Janik assists clients in gaining access to the U.S. Army Corps of Engineers' Continuing Authorities Section 206 program of the Water Resources Development Act.  Under this provision, a public agency or large not-for-profit can partner with the federal government to restore aquatic lands in a responsible way that can be advantageous for large property owners.  The firm has successfully assisted these clients in using this unique approach to fund projects, with advice on agency policy and the preparation of a project cooperative agreement under the legislation authority. 
• Pedestrian Trail Improvements – The firm assisted a Central Washington port district with an appropriations request which jointly advanced the construction of a pedestrian and bike trail, and the realignment of a road through an industrial facility.  By combining the trail and road projects, we helped our client meet the community's desire for access to the Columbia River, while protecting industrial land for future development and improving freight mobility through Port property.

B.    Promoting Substantive Legislation for Clients.  The group promotes the interests of clients on a wide variety of resource legislation.

• Clean Water Act Amendments for City Water System – The firm came to the assistance of a city faced with an environmental challenge and an unfunded mandate.  A Pacific Northwest city was ordered by the state environmental agency to provide wastewater treatment to 54,000 residents in an unincorporated area outside the city that was without a sewer system and causing a threat to drinking water/groundwater supplies. The city turned to the Clean Water Act for assistance but was told by EPA that its principal needs to finance this burdensome project were ineligible under the EPA's loan program.  Working with the city, EPA and congressional delegation, led the effort to amend the Clean Water Act through the appropriations process so that this city's project was eligible under the Clean Water Act loan program.
• Pipeline Safety Act: Response to Disaster – Ball Janik championed the safety of citizens at risk to the unsafe operation of critical infrastructure, with our work in reforming the Pipeline Safety Act.  This effort centered on amendments to the legislation requiring more public information on safety and the location of pipelines.  We successfully included provisions requiring an increase in the inspection of such pipelines, as part of a response to the Bellingham, WA pipeline explosion disaster.
• Superfund Reauthorization – Ball Janik continues to actively support the reauthorization the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) on behalf of remediation contractors who restore contaminated sites to productive use.

C.    Penetrating the Administrative, Regulatory Morass.  The group regularly assists clients with their issues before various federal agencies, resulting in the successful resolution of environmental challenges for of clients.

• Contaminated Land Restoration & Transfer – Ball Janik attorneys are skilled in assisting clients with the transfer of contaminated properties under Federal and state brown fields initiatives, as well as DOD funded environmental cleanup programs.  We have professionals who have served as leaders and advisors on project teams in California and Washington, D.C., negotiating levels of cleanup with Federal and state regulatory agencies.  These efforts resulted in the restoration and transfer of significant parcels of contaminated properties and their return to productive use. In particular, we have unique experience in the cleanup and transfer of property under the Defense Department’s formerly used defense site and base realignment and closure programs.

Court Challenges to Administrative Decisions

The firm has represented trade organizations, conservation groups, and other associations in challenges to government regulations.

• Fisheries Shutdown – The firm successfully challenged a National Marine Fisheries Service regulation closing the entire Gulf of Mexico to grouper fishing in 2005 and 2006.
• Catch Limits – The firm successfully challenged federal catch limits on red snapper that did not consider impacts of shrimp fishing.
• Salvage Logging – The firm defeated a challenge by an environmental group to a salvage contract between the federal government and our client.

Ball Janik LLP Top Ranked by Chambers USA 2010

Ball Janik LLP Top Ranked by Chambers USA 2008

Environmental Law News, Spring 2007

Environmental Law News, Fall 2006