Attorney focuses on environmental law

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 explained. “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,” he said. “Only through challenges and case law do they become clearer.”

Peters said he also enjoys working with the agencies in negotiating proper resolutions to permitting and compliance issues in order to meet governmental standards while promoting continued economic growth.

Peters earned his undergrad degree from the University of Iowa and his J.D. from the John Marshall Law School – Chicago. 

He was hired by Gov. 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  rate design.

After moving to Pittsburgh, he was lead attorney for the Pennsylvania DER in assisting the EPA in prosecuting the Ashland Oil tank collapse on the Monongahela River on Jan. 2, 1988. Oil made its way into the Ohio River, contaminating drinking water for about a million people.

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

In Detroit, Peters represented Dean Dairy Products Co., a subsidiary of Dean Foods Co., in a federal court lawsuit filed by the EPA in Harrisburg. 

His 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 said. 

After negotiations and three years’ 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. 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 said. “That court held the District Court had wide discretion and did not change the penalty amount. The dairy is still operating — in compliance — today.”   

One case involved a company in the auto industry. After resolving a civil wastewater discharge violation action  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.     

“To say the least, the management was quite unnerved, particularly when both agents made sure the managers knew they were ‘packing iron,’” Peters said.

“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  he said, “the EPA asked, ‘Where do you want all of your documents returned?’  We told them to recycle them.”   

A case in Illinois involved not only a civil settlement with the U.S. EPA for alleged Clean Air Act violations but 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 said.

Despite the pending criminal investigation and civil lawsuits — “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,” he said.
 

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