Van Kley Walker, LLC
practical insight in environmental law


Practice Areas

We offer depth of perspective across a wide range of environmental issues.


Air Pollution

We offer extensive experience with air pollution permitting, compliance counseling, and enforcement defense.

Just as our clients vary in size from large to small, their air emission issues range in complexity from federally required new source review permits and Title V permits to state-imposed permits to install and operate minor sources. We have both the knowledge of air pollution law and the relationships with technical consultants and government regulators to help clients solve their air pollution issues.

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Brownfield Redevelopment

We assist owners, purchasers, lenders, and municipalities with environmental challenges associated with unused, underutilized, or abandoned former industrial sites, commonly called brownfields. We assist clients in evaluating legal risks associated with owning, leasing, or lending on brownfield sites. We are familiar with the growing field of regulatory programs providing incentives to clean up and reuse brownfield sites, and guide clients to potential insurance products and other tools that may temper the risk of acquiring or financing such properties.

We also guide clients through the eligibility requirements for a governmental “covenant not to sue” under Ohio EPA’s Voluntary Action Program, or “VAP.” In one project, Jack Van Kley guided a major metropolitan museum through this process during the construction of the museum on an inner city tract. Chris Walker has worked on numerous VAP projects, including a brownfield cleanup and reuse project for a major inner-city hospital. Chris also advised a municipal community improvement corporation regarding innovative strategies for the $1 billion cleanup of a former U.S. Department of Energy research facility. That cleanup paved the way for the reuse of the property as a high-tech industrial park.

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CERCLA Cleanup and Cost Recovery

We have handled a multitude of cases and issues under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and analogous state cleanup statutes. Our experience with these laws started in government service and continues in private practice.

Response Actions and Cost Recovery

Most frequently, these cases occur when the government or a responsible party seeks its costs for removing or remediating releases or threatened releases of hazardous substances. The government can also issue administrative orders directing a responsible party to assess or clean up a site. We assist clients in any negotiation or lawsuit arising out of these situations.

Natural Resources Damages

The government may file suit for damages against a company believed to have released hazardous substances that killed or injured fish, wildlife, and other natural resources. Sometimes, the government misdiagnoses the cause of the damage, blames the wrong company, or inflates the estimated value of the damaged resources. We have the knowledge necessary to test the government’s evidence on these points.

Property Transactions, Financing, and Due Diligence

With its potential for enormous costs, the spectre of CERCLA liability lurks behind every transaction and lending relationship. We work with environmental consultants to detect, evaluate, and manage CERCLA risks in the purchases or financing of properties and businesses.

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Closures of Industrial Facilities

The regulatory requirements for closing part or all of a manufacturing facility, chemical storage warehouse, or other regulated facility can be as complex as those for starting a new facility. In the case of facilities subject to state or federal hazardous waste laws, we guide owners and operators through the maze of hazardous waste closure and corrective action requirements. We provide similar assistance for closing storage tanks. We assist in the sale or transfer of air and water discharge credits in jurisdictions that allow such transactions. In states such as Ohio that have specific environmental regulations governing cessation of regulated industrial and commercial operations, we also assist facility owners, operators, and lenders in meeting the notification, security, and cleanup requirements under those regulations.

Where a closing facility will be sold, it is often prudent for the seller, purchaser, and/or lender to perform a detailed environmental assessment to establish an inventory of recognized environmental conditions at the time of transfer in order to assess potential risks and establish eligibility for legal protections under CERCLA and similar laws. We have guided clients through the environmental aspects of scores of commercial and industrial real estate transactions involving everything from large chemical manufacturing facilities to small machine shops.

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Compliance Audits

We team with environmental consultants to conduct complete, confidential audits of client facilities to identify potential environmental violations and liabilities that could lead to government enforcement and citizen lawsuits. Where compliance issues or environmental hazards are identified, we assist in developing action plans to address them. In some situations, this action plan may include reporting the violations to the government to obtain immunity for the violations under available immunity or amnesty program for self-disclosures.

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Construction and Demolition Debris

Construction and demolition debris (C&DD) disposal facilities face increased government inspections, stiffer monitoring requirements, new disposal fees, and citizen opposition. We have represented both C&DD facility operators and local governments on a host of issues relating to the permitting, design, construction, operation, and closure of C&DD disposal facilities.

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Drainage Issues

Drainage is essential to maintain property values and crop yields, as well as to conserve soil and protect public health. Laws meant to protect wetlands, water quality, and neighboring properties may conflict with these legitimate goals by limiting a landowner’s drainage options.

We guide clients through the legal challenges presented by drainage issues. Whether our clients seek to improve the drainage on their own properties, minimize flooding problems caused by neighboring properties, or construct or maintain public ditches, we help them identify and implement the most prompt and practical solutions to their legal concerns.

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Drinking Water

We advise and defend municipalities, manufactured home communities, and businesses regarding issues under the federal Safe Drinking Water Act and analogous state requirements.

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Emergency Planning and Right-To-Know

We advise clients concerning a host of federal, state, and local reporting requirements applicable to the storage and release of petroleum and chemicals, including:

  • Emergency release reporting for spills or emissions of hazardous chemicals or petroleum;
  • Periodic reporting and notification requirements (EPCRA 312 “Tier II” reporting) applicable to storage of threshold quantities of hazardous substances and extremely hazardous substances;
  • Annual Toxic Release Inventory (Form R) reporting under EPCRA Section 313, which applies to releases of hazardous substances from facilities that manufacture, process, or otherwise use regulated quantities of such substances; and
  • Development, submission, and maintenance of Risk Management Plans (RMPs) under Section 112(r) of the Clean Air Act.

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Environmental Impact Statements

The National Environmental Policy Act (NEPA) requires detailed environmental studies of certain major federal actions significantly affecting the quality of the environment. NEPA’s purpose is to require government decisionmakers to take a “hard look” at all feasible project alternatives in order to encourage planning to minimize environmental and social impacts.

NEPA issues frequently occur in the context of infrastructure projects such as federal aid highways, rail transportation, pipelines, and navigation projects. We have advised clients on NEPA issues pertaining to major projects proposed by the U.S. Fish and Wildlife Service, the Ohio Department of Transportation, the Federal Highway Administration, and local transit authorities. We assist project planners in identifying project planning elements required by NEPA. We also assist the public in ensuring that project planning adequately addresses the environmental assessment, alternatives analysis, and public involvement required by NEPA.

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Environmental Issues in Estate Planning and Probate

When a property or business passes from one generation to the next, will the environmental liabilities transfer with it? We regularly work with clients and their financial planners and estate lawyers to develop strategies that minimize liability risks to heirs. We also assist probate lawyers in addressing environmental law issues affecting estate assets such as filling stations, dry cleaning businesses, commercial and industrial properties, and blighted properties.

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Environmental Mediation and Public Policy Facilitation

Chris Walker serves as a mediator and facilitator in connection with environmental and public policy matters. For example, he facilitated a successful round-table discussion on drainage policy and water quality in northwestern Ohio involving county and township elected officials and staff, academic researchers, governmental agencies, university extension officials, and representatives from agricultural and environmental groups.

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Farmland and Open Space Preservation

We advise private landowners and land preservation organizations concerning conservation easements, agricultural easements, and other land conservation tools. Through a conservation easement or agricultural easement, a landowner can control the degree to which his or her farmland, historic property, or natural area may be developed or modified. Many conservation easements extinguish development rights to the property in order to perpetually protect farmland and open space. Conservation easements and agricultural easements are binding on current and successor owners of the land.

Government programs may provide funding to purchase conservation easements or agricultural easements from owners of unique properties worthy of long-term protection. Even where government funding is unavailable, landowners may realize significant federal income and estate tax benefits from donating a qualified conservation easement. We coordinate with qualified tax professionals to ensure that easements accomplish both conservation and taxation objectives.

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Federal Facilities

Van Kley & Walker has a unique perspective on environmental issues concerning U.S. government facilities. Jack Van Kley served as lead counsel in state environmental enforcement actions against five U.S. Department of Energy and Department of Defense facilities, and was instrumental in bringing about major legislation requiring U.S. government facilities to comply with federal and state environmental laws. Chris Walker represented an Ohio municipality in connection with the $1 billion cleanup of a former U.S. Department of Energy research facility. That cleanup paved the way for the reuse of that facility as a high-tech industrial park.

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Fish Kills

In some cases, government regulators may seek monetary damages for the loss of fish and other wildlife allegedly caused by pollution from a farm, company, public sewer system, or other source. We are experienced in the negotiation and litigation of fish kill claims for government and private clients.

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Hazardous Waste

Our involvement with the hazardous waste regulations started as government litigators who enforced these regulations, and has continued with our representation of private clients. We have advised generators as well as permitted waste disposal facilities in all aspects of hazardous waste regulation. Our background also includes the cleanup of hazardous waste under requirements applicable to closure and solid waste management units.

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Legislation and Rulemaking

We have broad experience in monitoring and influencing federal and Ohio environmental legislation and regulations. Our experience includes drafting bills passed in Congress and the Ohio General Assembly, as well as testifying before federal and state legislative committees and administrative agencies. We frequently draft and submit written comments on behalf of clients who have interests in pending bills and proposed administrative rules.

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Litigation

We started our careers as government litigators who filed environmental enforcement lawsuits and defended administrative appeals, then refined our litigation experience as practitioners in large law firms. We manage both simple and complex litigation in an effective, cost-conscious manner. We have handled hundreds of environmental lawsuits and administrative appeals, including:

  • Defense of environmental enforcement actions brought by U.S. EPA, the U.S. Army Corps of Engineers, Ohio EPA, the Ohio Department of Natural Resources, the Ohio Department of Agriculture, and other agencies;
  • Appeals (and defense of appeals) of permits, orders, regulations, and other matters before the Ohio Environmental Review Appeals Commission, Ohio EPA, Ohio Power Siting Board, Public Utilities Commission of Ohio, federal administrative tribunals, local zoning boards, and federal courts.
  • Business litigation involving environmental liabilities, environmental warranties and indemnities, and CERCLA cost recovery and cost allocation.
  • Prosecution and defense of litigation brought under federal environmental citizen suit laws such as the Clean Air Act and Clean Water Act, as well as environmental claims involving health impacts, property damage, nuisance, and similar issues.

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Livestock and Poultry Farms

Livestock and poultry farms are facing increasingly stringent controls under governmental environmental programs. We advise these farms on all environmental programs that affect them, including permitting, odors, insects, rodents, water pollution, and air pollution.

Air Pollution

In some cases, EPA or a state contends that manure storage structures, digesters and other waste-to-energy systems, pumps, and other devices on farms release regulated quantities of air pollutants. In those instances, the government might ask the farm to obtain costly and burdensome air pollution permits for the farms. We assist farms and their consultants to determine whether an air pollution permit is actually required and, if it is required, to negotiate with the agencies for fair and practical permit conditions. We also defend farms if the government or citizens submit complaints or file lawsuits that accuse the farms of violating the air pollution laws or permits.

Permits

More and more, farms are being required to apply for environmental permits. In many cases, we work with government agencies to obtain permits to construct and operate livestock and poultry farms and other operations. In other cases, if the government asks our clients to apply for an unwanted permit, we determine whether the law requires the permit and defend our clients against unjustified government demands to apply for the permit. Where a permit is required, we negotiate with the agencies for fair and practical permit conditions.

Water Pollution Discharges

Government regulators are watching farms for evidence that manure, feed, or other agricultural materials have spilled or flowed into streams from fields, barns, or impoundments. We advise farmers on how to avoid these discharges and defend them when accused of discharging pollutants.

Zoning And Other Local Controls

Increasingly, some local governments are attempting to regulate livestock and poultry farms and other agricultural activities through zoning, weight limits on roads, and other schemes. We analyze state and local laws to determine whether the government’s activities are lawful and assist farmers to overcome these obstacles.

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Mold and Indoor Air Quality

We have experience assisting clients with legal issues relating to mold, bacteria, and other “sick building syndrome” matters. We assist developers, construction contractors, or landlords in remedying the problem, dealing with tenant concerns, and avoiding or preparing for litigation. We also represent clients who have been sued, or are suing, over the presence of mold or other indoor air issues.

Vapor intrusion is an increasingly prominent environmental concern for government regulators, neighbors of contaminated properties, and purchasers of commercial and industrial real estate. We have advised and represented numerous clients regarding actual or potential vapor intrusion issues in a variety of contexts, including governmental enforcement actions, closures of industrial facilities, and real estate and business transactions.

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Noise

Not many Ohio law firms are experienced in noise litigation. We have that experience. We represent the victims of noise pollution, as well as persons seeking to prevent industrial generators, wind power turbines, and other noisy operations from locating near their land and homes. We are also available to help companies that are wrongly accused of causing noise pollution, or that seek advice on avoiding noise issues in their own operations that could result in neighbor disputes, lawsuits, and loss of reputation.

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Odors

We have advised both agricultural and industrial clients on resolving odor disputes. For industrial clients, odor issues have played a role in government enforcement actions and permit negotiations. We have assisted agricultural trade associations on odor issues in legislative initiatives. When livestock and poultry farms adopt odor management practices to obtain their permits, we defend these practices against neighbors’ appeals of the permits.

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Permits and Licenses

A permit or license is the centerpiece of most environmental programs. Without it, a business, farm, or local government may not be allowed to construct or operate its facility. Unreasonable permit terms may cause costs to skyrocket or make compliance impractical. If the permit’s language is difficult to interpret, the permittee may not even realize the permit is being violated. In any of these situations, a business, farm, or local government may lose its authorization to operate the facilities or may be subject to lawsuits, penalties, or even imprisonment.

We are experienced in guiding clients through the environmental permitting process, negotiating reasonable permit terms, counseling clients on permit compliance, appealing unreasonable or unlawful permits, and defending against governmental enforcement of environmental permits. Our experience covers a wide range of environmental permitting programs, including:

  • Air pollution control permits, including permits under the federal Title V, PSD, and Nonattainment New Source Review programs;
  • Permits under numerous water pollution control programs, including NPDES discharge permits, industrial and construction storm water permitting, and Ohio Permits to Install for disposal systems.
  • Permits for livestock and poultry farms;
  • Permits and authorizations relating to activity in wetlands and navigable waters, including Section 404 dredge and fill permits, 401 water quality certifications, and Ohio isolated wetland permits;
  • Permits for treatment, storage, and disposal facilities under federal and Ohio hazardous waste programs, and for the construction and operation of solid waste and construction/demolition debris disposal facilities; and
  • Power siting certificates issued by the Ohio Power Siting Board.

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Radioactive Substances

Licensing and Regulation

We advise clients on the licensing and regulation of source and special nuclear materials used for beneficial purposes under the Atomic Energy Act and state law. We have assisted hospitals and other clients in obtaining these licenses from the Nuclear Regulatory Commission and state agencies and have counseled clients on compliance issues under these regulatory programs.

Radioactive Waste

We are familiar with the licensed disposal of byproduct materials by private companies under the Atomic Energy Act as well as the remediation of radioactive waste releases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Our involvement in these issues includes legal actions for the cleanup and cost recovery for radioactive waste at U.S. Department of Energy facilities.

Radioactive Air Emissions

Radionuclide emissions can be addressed under air pollution law and CERCLA. We have been involved in regulation and litigation over radioactive air emissions under both laws.

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Solid and Infectious Waste

Solid Waste

Our experience includes the permitting of solid waste facilities, as well as advising clients on compliance with regulatory requirements. We have represented local governments and solid waste management districts on legislative and regulatory initiatives affecting their ability to meet the waste management and recycling needs of their communities. We also defend against enforcement actions and lawsuits for the unauthorized disposal of these wastes.

Infectious Waste

We have advised hospitals, doctors’ offices, and other clients on the proper storage and disposal of infectious waste.

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Transactions and Due Diligence

Our background in environmental compliance counseling, enforcement, and litigation provides us with a “big picture” perspective on environmental issues in business and real estate deals. Our counseling experience provides us with the knowledge necessary to recognize the environmental issues in a transaction. Our experience in government enforcement and litigation enables us to identify environmental issues that could lead to lawsuits or significant losses. Our goal is to resolve these issues so our clients can close the deal in accordance with their business needs.

Commercial and industrial real estate deals often present a dizzying range of environmental issues. How should I perform environmental due diligence before the closing? How can I structure the deal to avoid environmental liabilities for past or existing conditions on the property, or even off the property? What are my future environmental liabilities if I purchase the property? Am I retaining environmental liabilities after I sell the property? Do I qualify for applicable legal protections against environmental liability? What public grants or low-interest loan funding might be available to help with site investigation? What environmental permits will I need for my intended use of the property? What environmental laws will I need to meet for future site operations?

We regularly help clients — whether buyers or sellers, landlords or tenants, lenders or borrowers — to cut through the tangle of environmental law issues in real property transactions, business asset purchases, mergers, and acquisitions. We guide clients through the process of environmental due diligence, including Phase I and Phase II environmental site assessments. We identify and explain environmental liability risks identified through due diligence. We review environmental assessment reports to ensure they comply with applicable standards for “all appropriate inquiries”- a prerequisite to liability protections under federal environmental law. We draft and negotiate appropriate contract provisions governing allocation of environmental liabilities, such as indemnification and escrow agreements. And we provide guidance on planning for environmental compliance both before and after the deal.

We have substantial experience with federal Prospective Purchaser Agreements as well as Ohio’s Voluntary Action Program, a regulatory brownfield program that offers successful participants with state-level governmental liability protections. We also assist clients in identifying and securing available governmental grants and low-interest loans for site investigation and remediation.

Managing transactional environmental challenges often requires an interdisciplinary team. We can draw on a wide network of technical environmental consultants, environmental insurance brokers, and other outside contractors to help clients find the unique skill sets needed for the deal. And we routinely support real estate and business attorneys on environmental aspects of their deals.

We also advise our clients on any environmental issues arising after the deal. For example, we negotiate or litigate to recover costs caused by another party’s breach of environmental representations and warranties, and defend clients against indemnification claims.

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Underground Storage Tanks

Underground storage tanks for petroleum or waste materials may be regulated under the federal Resource Conservation and Recovery Act (RCRA), equivalent state programs, and state fire codes. We guide clients on the legal requirements applicable to the installation, operation, closure, and cleanup of underground storage tank systems. We have particular knowledge and experience with the regulatory programs administered by the Ohio Bureau of Underground Storage Tank Regulations (BUSTR) and the Ohio Petroleum Underground Storage Tank Release Compensation Board. We have represented numerous clients in lawsuits, regulatory proceedings, and real estate transactions involving underground storage tanks.

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Water Pollution

Permits and Compliance Counseling

We assist farms, companies, and local governments in understanding and meeting their obligations under federal and state water pollution control laws, including the NPDES point source and storm water permitting programs. We have assisted on dozens of matters involving NPDES applications, negotiations, interpretation, and appeals.

Areawide Water Quality Planning

We are experienced in helping municipalities, counties, and townships with environmental regulatory issues relating to sewer and wastewater treatment infrastructure planning.

Fish Kills

In some cases, government regulators may seek monetary damages for the loss of fish and other wildlife allegedly caused by pollution from a farm, company, public sewer system, or other source. We are experienced in the negotiation and litigation of fish kill claims for government and private clients.

Lawsuits and Prosecutions

We defend farms, local governments, and businesses against civil lawsuits alleging pollution or the violation of water pollution permits. We assist criminal defense attorneys who are defending clients accused of violating the water pollution or stream littering laws. We also file lawsuits on behalf of those who have been harmed by pollution.

Storm Water

Storm water pollution requirements apply to certain industrial facilities, as well as to construction sites of one acre or larger. During construction, storm water construction permits require silt fences, collection impoundments, and other controls to prevent soil erosion into surface waters. After construction, NPDES permits impose post-construction and industrial storm water requirements. Local governments are also required to adopt storm water control programs for municipal separate storm sewer systems (MS4s). We assist companies, builders, local governments, and farms to obtain authorization for their activities under these permits, negotiate permit conditions, and handle disputes with government regulators over compliance issues.

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Water Rights

Water Supply Disputes

Expanding population centers and businesses are increasingly competing for available water supplies from streams and aquifers. We represent local governments, water departments, companies, farms, and other parties that have lost their water supplies to persons taking more than their fair share, as well as those who have been accused of using too much water.

We have successfully defended lawsuits by neighbors who have accused a municipal well field of drying up their wells. In a landmark case that reached the Supreme Court of Ohio, Jack Van Kley represented four municipalities and a county to stop the City of Akron from depriving the Cuyahoga River of the water flow necessary to preserve his clients’ water supply and park lands. Besides handling lawsuits of this nature, we advise our clients regarding how best to avoid these disputes before they result in litigation.

Navigation Access

The public has the right to fish and boat on navigable streams and lakes. If the citizens of a local government, liveries, or other interested parties are refused access to a navigable stream or lake, we restore their rightful access. We also advise the owners of a stream or lake on whether it is navigable. If not navigable, we will protect these clients from uninvited public access.

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Wetlands

Wetland Development

Section 404 of the Clean Water Act prohibits the discharge of dredged or fill material to waters of the United States. In the decades following its enactment, the provisions of Section 404 have expanded dramatically through judicial and regulatory interpretation. Today, Section 404 applies to a wide range of activities in or near rivers, streams, lakes, ponds, ditches, and wetlands.

It often is not obvious that a property contains regulated wetlands or that activities will discharge dredged or fill material. Landowners, developers, and farmers have been fined, ordered to reconstruct wetlands and stream banks, and even criminally prosecuted for unintentional violations of wetlands regulations. If an area is near a permanent or intermittent stream, ditch, or water body, or is periodically boggy or flooded, it is prudent to assess whether wetland requirements apply before construction, stream bank maintenance, drainage improvements, or farming in that area.

We assist landowners, farmers, developers, and businesses in assessing whether federal and state wetland requirements apply to their activities. If wetland restrictions apply, we advise clients regarding options for minimizing their impact, such as streamlined permitting under the federal Nationwide Permit process. We also represent clients in negotiations, permitting, and enforcement proceedings involving U.S. EPA, the U.S. Army Corps of Engineers, and state agencies.

Swampbuster Restrictions

Farmers’ benefits under some federal farm programs are conditioned on not damaging wetlands on their farms. We help farmers to identify the farming or drainage activities that might jeopardize these benefits, or defend them against government attempts to revoke the farmers’ participation in these programs.

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Wind Power Development

Companies seeking to construct utility-scale wind energy facilities must obtain certificates seeking the authorization from the Ohio Power Siting Board to construct them. We represent landowners, community organizations, local governments, and others seeking reasonable restrictions to protect their communities from the noise, physical hazards, and visual degradation that wind farms can cause.

We are also available to assist clients who have been harmed by noise or other environmental conditions caused by an existing wind farm.

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