Biography Photo of Kevin Desharnais

Kevin G. Desharnais

Member

Kevin Desharnais, an environmental litigator and counselor with over two decades of experience, advises clients on environmental matters covering all environmental media, including such areas as air and water permitting and enforcement, hazardous waste management, Superfund liability, and remediation of contaminated sites. He has represented clients in numerous federal and state court proceedings and administrative tribunals, defended clients against citizen enforcement suits, and negotiated resolutions of permitting and enforcement disputes with administrative agencies across the country.

Kevin also has broad experience advising clients regarding environmental due diligence and the allocation of environmental liabilities in corporate and real estate transactions. He also has extensive experience advising clients with regard to environmental due diligence in the development of renewable energy projects, including compliance with NEPA and state equivalent statutes, endangered species and migratory bird impacts, and wetland issues. 

Education & Credentials

Education

Cornell University

B.S., Natural Resources, 1998

Pace University School of Law

J.D., Environmental Law Certificate, 1992
  • Articles Editor, Pace Environmental Law Review
  • Pace Environmental Litigation Clinic, reported decision Connecticut Coastal Fishermen’s Association v. Remington Arms, 989 F.2d 1305 (2d Cir. 1993).

Bar Admission

  • Illinois
  • New Jersey
  • New York

Prominent Assignments

Multi-Media

  • Advised in-house counsel at manufacturing client regarding all aspects of environmental compliance, including air and water permitting, waste management, and oversight for facility audits. 
  • Advised energy industry client on facility-wide, multi-media audit of acquired subsidiary, and voluntary disclosures related to identified historic noncompliance through USEPA’s eDisclosure portal, in accordance with USEPA’s self-audit and voluntary disclosure policies; oversight of related corrective measures and reporting.
  • Advised energy industry client on nationwide audit of EPCRA TRI reporting compliance across multiple manufacturing facilities, and voluntary disclosure of identified non-compliance.

Air

  • Represented manufacturing client in responding to USEPA 114 requests regarding NESHAP applicability at two facilities; continued representation in subsequent administrative enforcement actions.
  • Represented industrial client in enforcement action brought by national citizen group opposing operation of coal-fired industrial boiler, alleging Prevention of Significant Deterioration (PSD) permitting violations, and emissions limit violations.  Continued representation of client in related enforcement action brought by state environmental agency, and pre-enforcement inquiry brought by USEPA.
  • Represented industrial client on Prevention of Significant Deterioration (PSD) and New Source Performance Standards (NSPS) issues in enforcement matters brought by USEPA.
  • Advised energy industry client on potential NSPS/PSD issues in Title V permitting related to expansions of an ethanol production facility.
  • Advised manufacturing client on PSD and other air-permitting issues related to operational changes at manufacturing and test facilities.
  • Advised utility client on potential liabilities under Title IV Acid Rain provisions, Clean Air Interstate Rule, PSD provisions and application for waiver.
  • Advised energy industry client with regard to implementation of “reasonably available control” technology.
  • Advised agricultural client on “single source” issues related to Title V permitting.
  • Defended energy industry client in enforcement action related to alleged violation of the National Ambient Air Quality Standards for PM10, resulting in withdrawal of claim.
  • Negotiated the settlement and acceptance of a Compliance Commitment Agreement in response to a Violation Notice issued to energy industry client regarding unpermitted air emissions, successfully avoiding enforcement litigation.

Land

  • Represented chemical industry client in New York State Superfund action and related contractual indemnification claim.  Argued and won summary judgment in the trial court on the issue of liability, and the appeal was heard and affirmed by the New York Court of Appeals, the state’s highest court. Subsequently negotiated settlement with the New York Department of Environmental Conservation, and settlement of related contractual indemnity claims.
  • Represented steel manufacturing client regarding remediation and redevelopment of a former steel manufacturing site into a mixed-use development, representing the largest brownfield redevelopment project in the City of Chicago.  This effort included negotiating the environmental provisions of a partnership agreement, obtaining multiple “no further remediation” letters under the state risk-based remediation program, and negotiating the provisions of an environmental insurance policy.
  • For a former petroleum bulk storage facility, assisted in negotiations with NYSDEC regarding a facility decommissioning and remediation plan, including negotiating the environmental provisions of the sale and redevelopment agreement.
  • Assisted a manufacturing client in obtaining two “no further remediation” letters under the Illinois Site Remediation Program in a one-year period to facilitate the sale of a strategic business unit.
  • Representation of a utility client in enforcement actions related to former manufactured gas plant facilities and related tort actions.
  • Advised a chemical industry client on implications of RCRA corrective action activities covering multiple facilities for an insurance recovery suit.
  • Representation of a truck rental company in connection with contract and common law nuisance suit by former landlord regarding contamination at a facility, which was also an historic petroleum bulk storage facility.  Negotiated favorable settlement.
  • Representation of industrial clients in all aspects of large toxic tort actions related to environmental contamination.
  • Representation of clients identified as PRPs in CERCLA litigation and/or responsible parties in RCRA citizen suits.

Water

  • Represented manufacturing client in enforcement action brought by the Illinois Attorney General and intervening national and local citizen groups regarding wastewater discharges; provided oversight on related permit amendments.
  • Representation of real estate client in wetlands mitigation and permitting matters and related fraudulent transfer claim; provided oversight for subsequent restoration efforts.
  • Representation of a manufacturing client with regard to discharge alleged to cause fish kill; negotiated settlement of alleged permit violations and natural resource damage claims.
  • Represented a resort client in initial permitting and subsequent expansion of a new wastewater treatment system, including negotiation of permit terms, legal oversight of engineers, and management of the citizen participation process.
  • Negotiated a state water permit in settlement of an enforcement action and variance proceeding for an energy industry client’s wastewater handling system.
  • Represented an energy industry client in a federal suit filed by a national environmental citizens group under the Clean Water Act alleging National Pollutant Discharge Elimination System permit violations. Negotiated a favorable settlement.

Renewable Energy

  • Advised numerous clients regarding environmental issues in renewable energy transactions, including wind projects, solar projects, clean coal projects, and combined cycle gas turbine power plants, including compliance with the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, wetlands protection and permitting requirements under the Clean Water Act, and compliance with state-equivalent programs.
  • Assisted biodiesel manufacturing client in establishing procedures and achieving compliance with Renewable Identification Numbers (RINs) reporting requirements under the Renewable Fuel Standard Program.

TSCA

  • Advised chemical manufacturing client on compliance with requirements of the Toxic Substance Control Act, including labeling and notification requirements, compliance with Significant New Use Rule requirements (SNUR), and export notification requirements. 

Environmental Issues in Transactions

  • Advised numerous clients on environmental liabilities in corporate, real estate and financing transactions, including real estate acquisitions, mergers, stock purchases, securitizations, debt offerings, and credit transactions.

Pro Bono Litigation

  • Representation of an institutionalized client in a contested conditional release proceeding in Illinois state court. Prevailed at trial after a four-day hearing. Prevailed on appeal before the Illinois Appellate Court. Successfully contested a petition for leave to appeal. Successfully continued representation in a subsequent fitness hearing. People v. Robin, 728 N.E.2d 736 (1st Dist. 2000), app. den., 734 N.E.2d 897, 248 (Ill. Jul 05, 2000) (Table, No. 89440), discussed in Case Law Updates: Criminal Commitment/Release, 24 Mental & Physical Disability L. Rep. 389 (American Bar Association 2000).
  • Representation of the members of the executive board of a religious organization named as defendants in a suit asserting claims for defamation, alleged financial improprieties, and violations of the Illinois Not-for-Profit Corporation Act. Negotiated a unique mediation/arbitration agreement leading to dismissal of the action.
  • Representation of a pro se plaintiff in the Northern District of Illinois’ Settlement Assistance Project, assisting client in obtaining favorable settlement of employment discrimination claims.

Professional Involvement

  • Federal Bar Association
    • Chicago Chapter, Board Member 2011 to present.
    • National Circuit Vice President for the Seventh Circuit, 2015 to present.
    • Environment, Energy, and Natural Resources Committee Chairman, 2012-2014; Board Member, 2011 to 2018.

Community Involvement

  • Operation ASHA, a charitable organization dedicated to the eradication of TB in India and worldwide.
    • U.S. Board President, 2011 - 2017
    • Board Member, 2010 - 2021
  • Evanston Producemobile, a food pantry dedicated to serving the food insecure in Cook County, 2020 to present.

Court Admissions

  • U.S. District Court, Northern District of Illinois
  • U.S. District Court, Central District of Illinois
  • U.S. District Court, District of Colorado
  • U.S. Court of Appeals, Fifth Circuit

Publications/Presentations

Presentations

  • “PFAS Webinar: PFAS Implications for Superfund,” Panel Moderator, 18 November 2020

Book Chapters

  • “Site Remediation Program,” Environmental Law in Corporate and Real Estate Transactions, 2019 Edition, Illinois Institute for Continuing Legal Education, 22 May 2019
  • “Site Remediation Program,” Environmental Law in Real Estate Transactions, 2014 Edition,” Illinois Institute for Continuing Legal Education, 28 March 2014
  • Site Remediation Program,” Environmental Law in Corporate and Real Estate Transactions, Update 2011,” Illinois Institute for Continuing Legal Education, 30 December 2011
  • “Site Remediation Program,” Environmental Law in Corporate and Real Estate Transactions, 2007 Edition” Illinois Institute for Continuing Legal Education, 2007
  • “Corrective Action of Land Contamination, Environmental Law in Illinois, Update, 2004,” Illinois Institute for Continuing Legal Education, 2004
  • “Corrective Action of Land Contamination,” Environmental Law in Illinois, Illinois Institute for Continuing Legal Education, 2001

Articles

  •  Author, “Illinois EPA Proposes Groundwater Standards for 5 PFAS Compounds,” Dickinson Wright Client Alert, July 2021
  • “USEPA Advances Toward Regulation of PFAS in Drinking Water,” Blog Post, 25 February 2021.
  • “Illinois EPA Issues Health Advisories for Four Per- and Polyfluoroalkyl Substances (PFAS),” Blog Post, 9 February 2021.
  • “Illinois Finalizes Regulations for Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act,” Blog Post, 23 September 2020.
  • “Illinois EPA Proposes PFAS Standards,” Environmental Law & Policy Monitor, Blog Post,15 September 2020.
  • “Illinois Pollution Control Board Schedules Second Round of Public Hearings on Proposed Regulations for Coal Ash Ponds,” Blog Post, 22 June 2020.
  • “After the Stay-At-Home Order: Water Management Best Practices for Re-Opening Buildings,” Blog Post, 2 September 2020.
  • “Trump Administration to Propose Narrowing “WOTUS,” Blog Post,10 December 2018.
  • “Trump ‘Fat’ Budget Proposal Fleshes Out EPA Cuts,” Blog Post, 25 May 2017.
  • “Trump Administration Proposes Additional Budget Cuts at U.S. EPA,” Blog Post, 30 March 2017.
  • “Trump Administration’s Budget Proposal Calls for Steep Cuts at EPA,” Blog Post, 16 March 2017.
  • “Initial Budget Discussions Include Significant EPA Cuts and Consolidation of Regional Offices,” Blog Post, 7 March 2017.
  • “EPA’s Mercury Rule Cost Analysis Tees Up New Battles,” Law360, 19 April 2016.
  • “4 Big Sticking Points of the Clean Power Plan,” Law360, 22 October 2015.
  • “EPA Ignores Costs,” Rapid News Network, 4 July 2015.
  • “High Court’s View of EPA Deference Unclear After Mercury Pollution, Health Care Rulings,” Bloomberg BNA Daily Environment Report, 1 July 2015.
  • “Judges Skeptical of Challenge to Proposed E.P.A. Rule on Climate Change,” The New York Times, 16 April 2015.
  • “EPA To Use Standing As Shield In Attack On Carbon Authority,” Law360, 14 April 2015.
  • “EPA Cribs From High Court To Shield Expansive CWA Rule,” Law360, 26 March 2014.
  • “EPA Response To 8th Circ. Ruling Invites Legal Trouble,” Law360, 3 December 2013.
  • “EPA Poised To Drastically Expand Water Jurisdiction,” Law360, 20 November 2013.
  • “Greenhouse Gas Limits Reinforced at Existing Facilities; NSPS Still a Big Concern,” Power Engineering, 6 July 2012.
  • “FWS Unveils Guidelines For Assessing Wildlife Impacts,” North American Windpower, 18 May 2011.
  • "Shaping the Renewable Fuels Industry Beyond 2010," Energy Law 360, 2009.
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