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.  
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

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

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

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

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
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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