Track Record - FryeLaw PLLC

Track Record

Extensive information about experience and
expertise in areas of law and sectors of
business and government can be found under
our Qualifications, but the “best evidence” of
FryeLaw PLLC’s ability to serve our clients
and solve their problems may be in what
others have said about Russell Frye and
FryeLaw PLLC, as well as in the organizations
that have put their faith in us, and the
successes that Russ has had for his clients.
Some examples of each can be found below.

Representative Clients:

American Forest & Paper Association, Inc.
American Petroleum Institute
American Standard Inc.
CO2 Litigation Group
Cooling Water Intake Structure Coalition
Georgia-Pacific Corporation
Konica Minolta Business Solutions USA
Louisiana-Pacific Corporation
National Association of Manufacturers
National Council for Air and Stream Improvement, Inc.
Norbord Inc.
Portland Cement Association
Ranchers Cattlemen Action Legal Fund United Stockgrowers
of America
Rubber Manufacturers Association
Rayonier, Inc.
Santa Rosa, California
SSM Coalition

Comments about Russell S. Frye and FryeLaw
PLLC:

“I have worked with Russ Frye as his colleague and as his client, and
Russ always provided well-informed and practical advice.”
--James R. Walpole, former General Counsel, National Oceanic and
Atmospheric Administration and former Assistant General Counsel -
Environment, Sears, Roebuck & Co.

“I could always depend on Russ Frye’s incisive legal analysis and sound
judgments on so many environmental and related issues.”
--John L. Festa, Ph.D., former Senior Scientist, American Forest & Paper
Association

“Russell Frye is just what I look for in outside counsel: knowledgeable,
pragmatic, and efficient.”
--Sharon Umhoefer, former Vice President and General Counsel, Konica Minolta
Business Solutions USA

Success Stories:

Proactive Response to Soil Contamination

Routine soil sampling by a residential developer, in a vacant lot near a

closed manufacturing plant,

began a complex

series of problems for one of

Russell Frye’s clients in California. After the

developer

contacted the

company,

suggesting that high lead and zinc levels in the soil resulted

from

the

company’s operations at the closed plant, Russ

began an extensive

investigation of past

operations

there, interviewing retired employees,

uncovering old maps and

aerial photographs, and

directing a

soil and

groundwater sampling program. At the same time, recognizing that the

discovery of high

levels of lead next to a residential neighborhood could

result in everything from

bad publicity to

“toxic tort” lawsuits, Russ

convinced the client to embark on an aggressive

community outreach

program, enlisting the

aid of local politicians and personally contacting all

the residents near the

contaminated site. This campaign

produced

substantial benefits in terms of

support from the local

community and a

better understanding of community

views on various

remediation options.

It later

was the subject of a case study at the annual meeting of the Air

and

Waste Management Association.

Resisting the state environmental

agency’s initial insistence that

contaminated soils be

hauled away to

distant hazardous waste landfill, Mr. Frye developed the

arguments that

persuaded the state

agency,

local government, and the neighbors that

encapsulation

and, ultimately, commercial use of

the property was a

better

option. And when soil contamination

was discovered on other,

undeveloped property nearby, Russ helped negotiate a

complex

arrangement where the soil was

consolidated and encapsulated in

conjunction with construction of

a highway

across the property.

These

aggressive, innovative approaches saved the client millions

of dollars in

remediation costs

and

probably avoided extensive and costly litigation.

Challenging an EPA Interpretation Stalls Citizen Suit

After a bitter labor dispute at a steel mill, the union sought to hurt the

company in any way it

could.

Finding a friendly

ear at the EPA regional

office, the union persuaded EPA to issue an

opinion that the

mill’s electric

arc furnace was

subject to New Source Performance Standards

(NSPS),

contradicting a

long-standing interpretation by the state

environmental

agency. With this

interpretation, the union

alleged in a citizen suit that

the company had failed to

comply with NSPS

for years, seeking millions

dollars in penalties. Called in to assist the company’s local law firm,

Russ

Frye dug through the

administrative record for the original promulgation

of the NSPS. He

developed several

arguments

why the EPA Region’s

interpretation was incorrect. Russ proposed

that the company seek

judicial

review of

the interpretation. He then wrote a brief for the U.S.

Court of Appeals for the Tenth

Circuit that raised sufficient

doubts about

the EPA interpretation to

delay the union’s citizen suit for

many months

and ultimately help force a very

favorable settlement

Promptly Halting Improper U.S. Dept.

of Agriculture Action

A large organization of ranchers was alarmed when it heard rumors that

Canadian beef was being

allowed into the

United States, despite an earlier

U.S. Department of Agriculture order banning

imports of cattle and beef

due to the

discovery of Mad Cow disease in Canada. Sure enough, they

discovered that USDA had posted a notice that essentially

granted a

variance from this import ban

for

most kinds of Canadian beef. Russell

Frye led a team that, within a few

days of this discovery,

prepared and

filed a complaint, motion for preliminary injunction, and application for a

temporary

restraining order against USDA, supported by five expert

affidavits. That same week, Russ argued

for

the

temporary restraining

order before a federal judge in Montana, and the judge issued the

order

the next business day,

enjoining the importation of most kinds of beef

from Canada. The

case

generated a great deal of media coverage (see,

g.,

Washington Post May 1, 2004 p. E1

) and

stimulated enquiries from

Congress and the

USDA’s Inspector General about the USDA action.

Identifying and Opposing Unauthorized Claim for Attorneys Fees

Russ Frye knew it was unusual when EPA Region 8 and Department of

Justice enforcement attorneys

invited the lawyer

for a group of

environmental activists to participate in meetings about an EPA

air

enforcement action, even requesting

his suggestions for questions to be

asked in discovery.

Russ

quickly objected to this, seeing that, among other

things,

the private

lawyer might claim he

was

entitled to attorney’s fees

under the citizen

suit provisions of the Clean Air Act,

even though

it was a

government

enforcement action rather than a Clean Air Act citizen

suit.

Russ carefully

documented

his objections and made it clear that the

company did not

believe this “co-

enforcement”

arrangement was

legal and

would not be

responsible for the private lawyer’s fees.

He also pointed

out that

accepting legal services to

supplement the government’s

enforcement

action arguably

constituted a violation of the Anti-Deficiency

Act, which

prohibits agencies from

using resources

beyond those

appropriated by

Congress. Although the government then

curtailed

the

role of the

environmental groups’ lawyer, he still filed a substantial

demand for

attorney’s fees

when the

government enforcement action was

settled.

Because Russ had laid the groundwork for

distinguishing

between

the

private lawyer’s work on his own case and his involvement in the

government

enforcement action, Russ was able to

object successfully to

the requested attorney’s

fees at the

district court level. When the

environmental groups

appealed that decision to

the U.S. Court of

Appeals

for the Ninth Circuit, he argued the case and

obtained a favorable

verdict,

in what was

widely reported as a

precedential decision, United States v.

Stone Container

Corp.,

196 F.3d

1066

(1999).

Innovative Solution to Lenders’ Permitting Concerns

A large electricity and steam cogeneration plant project was in jeopardy.

Funding commitments

would expire soon, and

the project developers did

not have a permit to construct an intake

structure

to withdraw cooling

water from the river

– a permit that would require an Environmental

Impact

Statement (EIS) and potentially lengthy appeals. Using

groundwater

for cooling was out of

the

question, due to restrictions on consumptive use

of a protected groundwater

resource. In

addition,

even if a source for the

cooling water could be found, the plant would still need to be

able to

discharge its wastewater, and the permit for the discharge also could

trigger EIS

requirements.

Called in by the

developer just as the lenders

were about to pull the financing for

the project, Russ

Frye urged the

parties to think

creatively. If it would be possible to use treated

effluent

from the

steam host for cooling, and then return the treated

effluent to

the steam host for

discharge under the

steam host’s wastewater discharge

permit, the problems of water

supply and

of obtaining a discharge

permit

could be avoided simultaneously. Russ guided the parties through

evaluation of the

technical and legal feasibility of this approach and

negotiated the terms of this

wastewater reuse

with the steam host. He

then convinced the lenders that this arrangement would

be a feasible

backup if the intake

structure and wastewater discharge permits could not

obtained prior to

operation of the cogeneration plant. Russ

also was

able to convince the lenders

that these permits

were not needed prior to

commencement of construction on

the project,

having participated in

litigation years earlier that successfully challenged

an EPA rule that would

have

required discharge

permits for new sources

before they commenced

construction.

he lenders were satisfied, and

hundreds of millions of

dollars of

construction financing was

released to Russ’s client.

Favorable Interpretation of MACT Regulation

A pulp mill was being asked by its state environmental agency to control

emissions from methanol

tanks used in the

generation of chlorine dioxide

for pulp bleaching, at considerable cost. The

Maximum Available Control

Technology

(MACT) standards for hazardous air pollutant emissions from

pulp mills were unclear as to whether this source was

regulated. At the

request of the American

Forest & Paper Association, Russ Frye delved into

the administrative record

supporting those

standards. With his intimate

knowledge of pulp mill processes, Russ was able to craft an argument

from

the record that EPA had specifically considered emissions from these tanks

and had chosen not

to regulate them.

This argument was accepted by

EPA’

s Office of Enforcement and Compliance

Assurance (OECA), which

issued

applicability determination that effectively foreclosed the

proposed

requirements for controls on these methanol tanks.

Copyright FryeLaw PLLC 2005-2008.

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