Archive for: Environmental Law

Norman W. Bernstein has advised on a wide range of regulatory matters under U.S. environmental laws and argued numerous envionmental cases in federal appellate and district courts. He has assisted venture capital firms in establishing legal structures to minimize the risks of financing environmentally sensitive deals, advised on environmental disclosure issues and acquisition structuring, extracted a large pigment manufacturing plant from enforcement proceedings, made presentations on behalf of a client before OSHA and the National Toxicology Program regarding the alleged risks posed by silica and on the alleged carcinogenicity of rock wool and slag wool. He has filed comments with EPA on a wide range of rule makings and has negotiated successful settlements in Clean Air Act enforcement cases. He is also a Trustee at two Superfund sites; one is on EPA’s National Priority List. Mr. Bernstein was one of the lead speakers at the 4th Annual Carbon Trading Summit in New York in January 2010. For more details as to some of Mr. Bernstein’s experience and background, please see below.

Superfund and Environmental Litigation 

Mr. Bernstein has played a lead role in Superfund matters since the inception of the program in the early 1980s. In 1983, he led the Enviro-Chem site removal action settlement with EPA–the first large multiparty Superfund settlement with the Agency after the scandals that forced the Administrator from office. In 1984 and 1985, he led the first small generator cash-out anywhere in the country at the Chem-Dyne and Conservation Chemical sites. In 1986-88 he led the defense of the New York landfills litigation and achieved a favorable settlement for his client and several other defendants – the first major landfills settlement in the country. He argued United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992), the first case ever lost by the U.S. Department of Justice at the federal appellate level on the issue of Superfund joint and several liability. Later that year he also filed the main industry amicus brief in the Second Circuit on Superfund divisibility. During the 1990s, among other things, he successfully represented a coalition of companies in their cost recovery action against more than twenty major utilities that had received a free ride from EPA at a large West Virginia PCB site. Within eleven months after Mr. Bernstein filed suit against the utilities, all but one had settled and the remaining defendant settled on the eve of trial. Mr. Bernstein is currently a Trustee at the Enviro-Chem site Superfund site and at the Third Site, both in Zionsville, Indiana, and the Duane Marine site in Perth Amboy, N.J. The Enviro-Chem site is on EPA’s National Priority list.

With respect to toxic tort defense, Mr. Bernstein obtained summary judgment for a primary third-party defendant in a major lead inhalation case and obtained a dismissal of a second toxic tort (environmental exposure) case. On the appellate level, Mr. Bernstein has briefed and argued cases in the United States Courts of Appeal for the First Circuit (Boston), Second Circuit (New York), Third Circuit (Philadelphia), Seventh Circuit (Chicago), Eleventh Circuit (Atlanta), and the D.C. Circuit (Washington, D.C.).

Clean Air, Clean Water, Hazardous Waste and Fiber Cases 

Mr. Bernstein argued the electroplating pretreatment cases under the Clean Water Act in the Third Circuit, successfully defended a company from a threatened Clean Water Act citizens’ suit based on a claim asserted by a national environmental organization, and also settled on favorable terms other claims for significant discharges allegedly prohibited under the Clean Water Act. He filed extensive comments on EPA’s proposed Metal Parts and Machinery (MP&M) effluent guidelines challenging their applicability to companies already regulated under the Metal Finishing Guidelines. Additional comments were also filed with EPA on similar aspects of the pre-treatment program under the Clean Water Act.

With respect to the Clean Air Act, Mr. Bernstein has negotiated Consent Decrees on favorable terms related to emissions from coal fired boilers and major steel making facilities. He participated in negotiations and filed comments with EPA related to the proposed Compliance Assurance Monitoring (CAM) rule under the Clean Air Act. One of the nation’s largest independent steel manufacturers incorporated (in its comments to EPA) a critical analysis prepared by Mr. Bernstein of the epidemiological data used by EPA in its proposed particulate matter 2.5 micron standard (the PM2.5 rulemaking). Mr. Bernstein has also participated in a wide range of other rulemakings under RCRA, the Clean Water Act and Clean Air Act.

Mr. Bernstein has briefed and made extensive administrative presentations to OSHA and the National Toxicology Program critically analyzing epidemiological and other test data related to the permissible exposure levels for silica and the alleged carcinogenicity of rock and slag wool and their dissimilarity to asbestos. He developed the administrative record challenging whether cutting wallboard posed a carcinogen risk and then used the record to successfully litigate against OSHA ending its proposal to mandate carcinogen warning labels on wallboard, joint compound and other silica containing construction products.

Counseling and Brownfield Development

Mr. Bernstein has provided counseling on a range of business activities involving potential environmental risks. Including with respect to Brownfield redevelopment. For example, he developed structural mechanisms that venture capital firms can use to control investors’ environmental risks – thereby facilitating investment in environmentally sensitive businesses. He has also provided counseling on the structuring of business acquisitions so as to control the environmental risks assumed. He has helped a major manufacturer establish the company’s internal management and compliance systems to minimize risks under governmental enforcement policies and to facilitate migration toward IS0 14000 compliance. More recently, Mr. Bernstein successfully extracted a large pigment manufacturing plant on Staten Island from NYDEC enforcement proceedings and obtained NYDEC approval for the site to be redeveloped under New York’s Voluntary Cleanup Plan.

Professional Affiliations and Education

Mr. Bernstein is a past Chairman of the Committee on Litigation Management and Economics of the American Bar Association (Litigation Section) and is the author of numerous articles and presentations on Superfund, including Superfund Reform Needs Drastic Simplification which is published in the January 1995 issue of The Environmental Law Reporter. He has taught torts at Wayne State University Law School and has been a guest lecturer on hazardous waste matters at Yale Law School and the University of Michigan School of Public Health. He is a member of the bars of New York and Michigan and of the bars of the United States Courts of Appeal for the First Circuit (Boston), Second Circuit (New York), Third Circuit (Philadelphia), Seventh Circuit (Chicago), Eleventh Circuit (Atlanta), and the D.C. Circuit (Washington, D.C.). He is also a member of the bar of the Supreme Court of the United States.

Mr. Bernstein is a cum laude graduate of the Columbia University School of Law (1964) where he was a member of the Board of Editors of the Columbia Law Review. Between college and law school, he served as an Ensign and Lieutenant j.g. aboard the destroyer USS Ault (DD 698). 

Areas of Practice

• Administrative Law
• Contracts
• Environmental Law
• Government Agencies & Programs
• Litigation & Appeals
• Natural Resources Law
• Toxic Torts

Bar Admissions 

• New York, 1964
• Michigan, 1983
• U.S. Court of Appeals District of Columbia Circuit, 1997
• U.S. Court of Appeals 1st Circuit, 1971
• U.S. Court of Appeals 2nd Circuit, 1966
• U.S. Court of Appeals 3rd Circuit, 1983
• U.S. Court of Appeals 7th Circuit, 1989
• U.S. Supreme Court, 1997

Education 

• Columbia Law School, New York, New York

-J.D.

• Columbia Law School, New York, New York

-LL.B.  cum laude – 196

-Law Review: Columbia Law Review, Member, Board of Editors, 1963 – 1964

• Columbia College, New York, New York

-B.A. – 1959

-Major: History/Government

Published Works 

• “The Enviro-Chem Settlement; Superfund Problem Solving”, Environmental Law Reporter, December, 1983
• “To Clean Up Landfills, The Leader Should Be Municipalities Using Economic Incentives to Settle”, Environmental Law Reporter, January, 1989
• “Superfund Reform Needs Drastic Simplification”, Environmental Law Reporter, January, 1995

Representative Cases 

• In re the Revenue Properties Litigation Cases, 451 F.2d 310 (1st Circuit 1971)
• Natural Resources Defense Council v. U.S.E.P.A., 683 F.2d 752 (3rd Circuit 1982)
• National Association of Metal Finishers v. E.P.A., 719 F.2d 624 (3rd Circuit 1983)
• General Motors Corp. v. U.S.E.P.A., 738 F.2d 97 (3rd Circuit 1984)
• City of New York v. Exxon Corp., 633 F.Supp. 609 (S.D.N.Y. 1986)
• State of N.J. Dept. of Environmental Protection v. Gloucester Environmental Management Services, Inc., 719 F.Supp. 325 (D.N.J. 1989)
• U.S. v. Kramer, 757 F.Supp. 397 (D.N.J. 1991)
• United States v. Alcan Aluminum Corp., et al 964 F.2d 252 (3rd Circuit 1992)
• American Federation of Labor and Congress of Industrial Organizations v. Occupational Safety and Health Administration, U.S. Department of Labor, 965 F.2d 962 (11th Circuit 1992)
• U.S. v. Alcan Aluminum Corp., 990 F.2d 711 (2nd Circuit 1993)
• DMJ Associates, LLC v. Capasso, 228 F.Supp.2d 223 (E.D.N.Y. 2002)
• Honeywell International, Inc. v. E.P.A., 372 F.3d 441 (D.C. Cir. 2004)
• Bernstein v. Bankert, , 702 F. 3d 964 (7th Circuit 2012)
• Bernstein v. Bankert, 733 F.3d 190 (7th Circuit 2013)

Classes/Seminars 

• Adjunct Professor, Wayne State University Law School, Torts, 1987
• Guest Lecturer on Hazardous Waste Site Matters, Yale Law School, 1985
• Guest Lecturer on Hazardous Waste Site Matters, University of Michigan School of Public Health, 1986
• Faculty Member, The Practicing Law Institute’s 1988 Conference on Hazardous Waste Litigation

Professional Associations and Memberships

• State Bar of Michigan, Member
• New York State Bar Association, Member
• American Bar Association, Member
• Columbia Club of Michigan, President, 1980 – 1983
• American Bar Association, Litigation Section, Past Chairman, Committee on Litigation Management and Economic

Past Employment Positions

• New York Landfills Litigation Settlement Group, Coordinator, 1987 – 1988
• Ford Motor Company, Associate Counsel, 1979 – 1988