PRACTICES

Water Quality

Overview:

Bergeson & Campbell, P.C. (B&C®) lawyers, government affairs professionals, regulatory specialists, and scientists have deep and broad experience in addressing legal, regulatory, legislative, and science policy issues relating to a variety of water quality issues. Our practice is highly specialized and focuses on the entire gamut of water quality challenges -- from helping to devise creative legislative solutions for agricultural and commodity growers concerned with Clean Water Act (CWA) issues, to commercializing new water treatment chemicals and water system technologies, and to providing sophisticated legal, regulatory, and science policy counsel to clients commercializing new technologies that might trigger water quality restrictions that could pose market entry barriers.

Our substantial pesticide practice makes us uniquely well-suited to address the complex issues found at the intersection of the CWA National Pollutant Discharge Elimination System (NPDES) permitting program and pesticide applications under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Our sophisticated familiarity with FIFRA jurisdictional issues, pesticide application practices, commodity grower and livestock production practices, and CWA permitting and discharge issues makes our team uniquely and expertly qualified to address and resolve these issues efficiently and effectively.

Our government affairs professionals offer extensive and highly focused skills in addressing legislative, regulatory, and/or science policy challenges facing clients in the agricultural, commodity grower, livestock production, and related communities, the regulation of these entities under the CWA, and related water quality issues germane to these industries.

Our government affairs professionals are equally proficient in addressing competitive challenges innovators face in commercializing new water treatment chemicals and/or water products that compete with incumbent technologies and products and benefit from standardized risk assessment approaches based on more traditional technologies. Other B&C professionals are familiar with federal, state, and international laws that must be considered in commercializing these newer technologies that either are intended to address water quality challenges or themselves impact water quality in a way that might threaten or diminish their commercial value or pose market entry barriers. We work with many manufacturers of water quality products and/or water quality systems. Similarly, our extensive Toxic Substances Control Act (TSCA) practice makes our team expert in all matters relating to the aquatic toxicity implications of new or existing chemical substances for chemical manufacturers and their downstream customers.

Our Experience:

B&C's lawyers, scientists, and policy experts are deeply engaged in water quality issues and have decades of experience with the intersecting (and sometimes conflicting) laws and agencies that regulate water quality.

Lynn Bergeson, Managing Partner, has for years worked with innovators of new technologies and products of those technologies and assisted them with addressing the competitive imbalances that arise when new products challenge incumbent products and the "new chemical bias" delays commercialization. Many of these challenges arise under TSCA and the effect discharges to water have on aquatic environments. These challenges may come in the form of TSCA Section 5(e) Orders or other unfavorable responses to premanufacture notification (PMN) submissions. Working through these issues requires legal and science skills, and the B&C team of scientists works successfully to address these issues. Lynn has also worked on more traditional NPDES direct discharge and indirect permit issues, enforcement and compliance issues, and due diligence matters.

Lisa Campbell, Partner, counsels clients on a wide range of issues pertaining to exposure and risk assessment, risk communication, and related legal and regulatory aspects of pesticide programs under FIFRA. This work has included addressing a range of issues relating to potential pesticide concentrations in water and related exposure and risk assessment challenges.

Susan Kirsch, Government Affairs Advisor with B&C and former senior environmental program manager at the Association of Clean Water Administrators, works closely with state and federal regulators involved in the development and implementation of CWA regulations and policy across the nation from the development of water quality criteria to permitting. Susan's deep understanding of CWA regulatory schema, and relationships with key decision makers at state water quality agencies and the U.S. Environmental Protection Agency (EPA) Office of Water, make her well-equipped to assist clients with navigating CWA regulatory challenges and compliance issues, and their intersection with other federal environmental laws and policies.

Chris Bryant, Senior Regulatory Consultant, has over two decades of experience in regulatory matters under the CWA. He assists clients in regulatory matters, permit development and compliance, advocacy before EPA and state agencies, and training. Chris' expertise also aids clients in bringing new products to the market in a manner that does not trigger CWA regulatory obligations.

Oscar Hernandez, Ph.D., former Director of the Risk Assessment Division (RAD) in EPA's Office of Pollution Prevention and Toxics (OPPT) and Senior Regulatory Chemist with B&C, provides expert scientific support in the areas of ecological and human health hazard and risk assessment of new and existing chemicals. He assists clients in developing risk management plans for chemicals with potential water releases leading to aquatic environment and/or human exposure.

Lara Hall, MS, RQAP-GLP, Scientist, delivers over a decade of experience in environmental research, study monitoring, and international regulatory support in aquatic ecology. Prior to joining B&C, she worked at the Stroud Water Research Center and Oak Ridge National Laboratory's Environmental Sciences Division.

B&C also draws on the skills and expertise of our consulting affiliate, The Acta Group (Acta®), for water quality issues under Canadian, European, and Asian law.

What We Do:

  • Services for Agricultural/Commodity Growers --
    • Evaluate proposed CWA regulations and EPA Office of Water policies; prepare public comments on these developments
    • Collaborate with clients and their allies on communication strategies on Capitol Hill, and with key decision makers at EPA, the U.S. Department of Agriculture (USDA), and other federal agencies and state environmental regulators
    • Educate policymakers and legislators on innovation and technical advancements in the agriculture industry and their potential role in addressing water quality challenges
    • Advise on pretreatment and NPDES permitting and enforcement matters
    • Advocate for legislative solutions to end duplicative regulation under the CWA and FIFRA
    • Develop political strategies and legislative solutions for commodity grower and other agricultural business interests with CWA challenges
  • Services for Clients Making or Using Water Treatment Chemicals --
    • Evaluate updates to pretreatment effluent guidelines and their potential impact on chemicals used to treat and disinfect wastewater
    • Advise on pretreatment permitting and enforcement
    • Assist in the evaluation of potential regulatory impacts of new water treatment chemicals
    • Create for clients product descriptions and marketing materials that highlight the CWA impact of products, particularly newly developed water treatment chemicals
    • Assist with commercialization of wastewater treatment and water disinfection chemical products
  • Services for Clients Commercializing New Technologies with Aquatic Toxicity Impacts --
    • Negotiation or elimination of aquatic toxicity discharge limitations on chemicals under TSCA Significant New Use Rules (SNUR)
    • General and nationwide permits under CWA Section 404
    • Total Maximum Daily Load (TMDL) development and implementation

Representative Engagements:

  • B&C routinely assists trade associations and their member companies' efforts to address the continuing impacts of water policy challenges confronting the agribusiness community and other business sectors. For those clients, B&C professionals evaluate proposed policy changes; draft public comments for agency-proposed regulations; develop water policy communications documents supporting government relations efforts of clients; participate in client advocacy efforts relating to water policy on Capitol Hill and among federal agencies; speak at conferences and workshops; develop policy publications; and provide an ongoing source of expertise to clients and their allies on technical and regulatory underpinnings of water policy.
  • B&C professionals regularly assist companies with new chemical notifications under TSCA and address aquatic toxicity challenges raised in risk assessments under TSCA Section 5 by refining the assumptions included in the assessment and ensuring appropriate risk models are used in the analysis.
  • B&C professionals are intimately familiar with the requirements of the CWA and the intersection of that statute's regulations on client interests related to pesticide registration and use under FIFRA and the Food Quality Protection Act (FQPA), aquatic-life criteria and habitat policies of the Endangered Species Act (ESA), the Safe Drinking Water Act (SDWA), and other laws applicable to client interests.
  • B&C assists clients in product development to ensure that new chemical products introduced to the metals treatment and related industry sectors do not trigger CWA issues. We work with our clients to review potentially applicable standards and to secure interpretations from EPA supporting, for example, conclusions that metal treatment chemicals would not be subject to the metal finishing pretreatment standards.
  • Our professionals conduct advocacy with EPA on its renewed study of the pretreatment and other CWA standards. We are providing information and data to help shape the scope and direction of EPA's evaluation of the efficacy of its existing standards. The resulting regulations are likely to shape the outcome of the major pillars of the CWA regulatory program for decades.
 
BERGESON & CAMPBELL, P.C.
2200 Pennsylvania Ave, N.W. Suite 100W | Washington, D.C. 20037 | (202) 557-3800 • (202) 557-3836 (fax) | www.lawbc.com
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