Drawing the line: Attorney focuses on environmental cases

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By Sheila Pursglove
Legal News

When Gary Peters was Assistant Chief Counsel for the Pennsylvania Depart­ment of Environmental Resources, he was the sole attorney representing the Deep Mine Safety Division.

“This involved defending inspectors in mine collapse and miner death cases, ensuring our inspectors were properly evaluating deep mine companies’ safety practices and also crawling the ‘chalk line’ on deep long wall mining operations,” he explains. “For a person who grew up in Iowa, hearing the earth collapse behind the chalk line when the hydraulic jacks were lowered was quite an interesting experience.”
An attorney with Howard & Howard in Royal Oak, Peters enjoys the challenges presented in interpreting environmental and regulatory law.

“Many regulations are almost unclear by design, and subject to agency interpretation.  Only through challenges and case law do they become clearer,” he explains. “I also enjoy working with the agencies in negotiating proper resolutions to permitting and compliance issues in order to meet governmental standards while promoting continued economic growth.”

The Des Moines native earned his undergrad degree from the University of Iowa and his J.D. from the John Marshall Law School – Chicago. 

“My perception of lawyers was of people who understood governmental regulations and fought to ensure the law was properly followed,” he says. “Although I had originally thought this career path might lead to becoming a politician, my work inside government was so interesting I felt I could do more good developing and enforcing governmental regulations than participating as a politician.”

A year out of law school, Peters was hired by Illinois Governor James R. Thompson for the Office of Consumer Services (GOCS) in Chicago, that represented parties before the Illinois Commerce Commission (ICC) and courts challenging the utilities’ proposed rate hikes and proposed rate design.

A career move for his wife took the couple to Pittsburgh, where Peters was lead attorney for the Pennsylvania DER in assisting the EPA in prosecuting the Ashland Oil tank collapse on the Monongahela River in Pittsburgh on January 2, 1988. About 3.5 million gallons of diesel oil were discharged, dumping nearly a million gallons of oil into a storm sewer leading to the Monongahela River. The oil made its way into the Ohio River, contaminating drinking water for about a million people in Ohio, West Virginia, and Pennsylvania. 

“Ashland Oil Co. later took full responsibility for the incident, accepting that they did violate industry standards when reconstructing the tank,” Peters says. “Ashland was fined $2.25 million – the largest fine at the time levied on an oil company after a fuel spill.”

After leaving the DER and moving to Detroit, Peters represented Dean Dairy Products Co., a subsidiary of Dean Foods Co., which Peters has represented nationwide on environmental issues since 1992, in a federal court lawsuit filed by the EPA in Harrisburg. 

“This action was brought by EPA despite the fact that my client was a small dairy that paid the local municipality to treat its wastewater and the municipal sewage treatment plant did not properly treat the dairy wastewater sent to it,” he says. 

After much negotiations and three years of work, the case went to trial. The EPA acknowledged the client had obtained no economic benefit from its discharge, the floor for any civil penalty. Despite that fact, the pretreatment permit violations had a statutory maximum of $57 million ($25,000 per day/per violation). The judge entered a penalty of $4.030 million.

“While our client was disappointed, they were so proud of our work they retained us to also handle the appeal to the 3rd Circuit,” Peters says. “That court held the District Court had wide discretion and did not change the penalty amount. The dairy is still operating – in compliance – today.”

An author and speaker, and named among Michigan Leading Lawyers, Michigan Super Lawyers, and dbusiness Top Lawyers, Peters considers a career highlight was a case for a large company in the automotive industry. After resolving a civil wastewater discharge violation action at a facility in Indiana with the state agency (IDEM), agents from the FBI and EPA’s Office of Criminal Enforcement appeared unannounced six months later to serve grand jury subpoenas on the company. 

“To say the least, the management was quite unnerved, particularly when both agents made sure the managers knew they were ‘packing iron,’” Peters says. “We aggressively participated in the production of documents and monitoring of interviews of employees and others over the next four years. 

“When the statute of limitations expired after five years, and without any criminal indictment against the company, the EPA asked, ‘Where do you want all of your documents returned?’  We just told them to recycle them.”

A recent case in Illinois involved not only a civil settlement with the U.S. EPA for alleged Clean Air Act violations but also a criminal grand jury investigation in New Orleans and three personal injury lawsuits filed in New Mexico, Oklahoma and Georgia. The company had been selling a replacement for Ozone Depleting Substances (ODS) for use in cars and A/C units. The original 1994 EPA regulations were adopted to help save the ozone layer and replace ODS substances per the Montreal Protocol of 1976. These regulations provided that “second generation” ODS replacements like this client’s products did not require approval under the EPA Clean Air Act Significant New Alternatives Policy (SNAP) Program. 

“After nearly 20 years, the EPA decided to ‘re-interpret’ this regulation to now state my client’s second generation products required SNAP approval,” Peters says. “Despite the pending criminal investigation and civil lawsuits – related to customers who had purchased the product and were injured through the flammable hydrocarbon exploding – we were able to negotiate an appropriate and reasonable civil penalty and have EPA relent on requiring approval for half of the products, allowing the company to continue to sell these products without SNAP approval.”

According to Peters, both federal and state agencies have increasingly been resorting to criminal grand jury investigations in instances where such compliance concerns were previously handled though administrative or civil litigation. He has represented clients in numerous such cases. 

“The first step is when the client receives a subpoena for documents or testimony,” he explains. “Targets and subjects of the investigation are recommended not to testify without immunity. Document production often requires a corporate representative to appear. These instances are fraught with danger as the U.S. Attorney almost always questions the corporate representative on issues far and wide. With grand jury secrecy, our clients often do not know if proceedings will continue, until the statute of limitations has run.”

Peters, who makes his home in Rochester Hills with his wife Colleen, attributes much of his career success to his high school experience with the Distributive Education Clubs of America (DECA). Elected National President in his senior year, he traveled extensively for a year giving speeches and writing articles for the monthly magazine, and met with President Nixon and other politicians.

“This experience provided a tremendous amount of confidence and experience in speaking before a variety of audiences, including my farewell speech in Atlantic City before 12,000 conference attendees,” he says. “It was a fantastic experience and led to my life-long love of travel.”

That passion has taken him to Hanoi, Beijing, Istanbul, Johannesburg, London, and Paris as well as Reykjavik, Iceland; Quito, Ecuador; Santiago, Chile; Cape Town, South Africa; and Egypt. A vacation trip to the United Arab Emirates is on tap for 2016. He enjoys traveling to represent clients around the country, and visiting his son, Alex, and daughter, Elizabeth, in California. He and his wife also have visited a World War II cemetery in The Netherlands where his great-uncle Arthur Amundsen, killed during the Battle of the Hurtgen Forest in 1944, is buried.

“My wife and I visited the cemetery three times and were also able to attend the 70th Memorial Day Remembrance last May,” Peters says.
 

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