Holme Roberts & Owen LLP (HRO) has one of the most sophisticated environmental law and toxic tort practices in the nation. Our clients range from large companies in the energy, aerospace, chemical, mining, communications, manufacturing, and transportation businesses to small or local businesses. We regularly represent governmental entities, individuals, and pro bono causes as well. We have in our ranks lawyers with substantial experience in all of the environmental statutes and regulatory programs that clients are likely to encounter, including the Atomic Energy Act, Clean Air Act, the Clean Water Act, CERCLA or Superfund, the Resource Conservation and Recovery Act, the Occupational Safety and Health Act, the National Environmental Policy Act and others. We have applied this collective learning and experience successfully in a host of contexts, including compliance counseling, business transactions, governmental enforcement actions, and private litigation and trials.

We have an extensive network of some of the best consultants and experts.

In addition to matters in the West where our offices are located, we handle many matters across the United States, as well as in other countries.

Our group does both counseling and litigation, which we believe enhances the value we can bring to clients. When counseling on compliance or business matters, for example, we can identify from firsthand litigation experience what environmental disputes are likely to arise and their probable litigated outcome, and thus better advise our clients on how to avoid or provide for those disputes. By the same token, when litigating an environmental dispute, our lawyers come to the case with a rock-solid foundation in the substantive laws and sciences involved, making them much more effective and efficient in handling the litigation.

Above all, the HRO environmental practice group prides itself in the delivery of the highest quality legal services in a timely and cost-effective manner, and in the success we have had helping clients reach their goal, whether that goal is closing a business deal, reaching a favorable settlement, or winning at trial.

CERCLA, RCRA, CWA, NEPA, NHPA, FLPMA, CEQA, and Other Statutory Litigation/Compliance Experience

CERCLA

• Multi-million dollar judgment on behalf of the plaintiffs in CERCLA § 113 contribution suit seeking costs for the cleanup of the Hylebos Waterway, part of the Puget Sound Superfund Site in Washington state.  Arkema Inc. v. Asarco (W.D. Wash. 2007).
   
• Currently defend a major PRP against a state-led CERCLA cost recovery action at DePue site in Illinois.
   
• Represented major defendants in four of the original CERCLA natural resources damage/cost recovery actions brought in the State of Colorado at the following sites: the Uravan site, the Cotter/Canon City site, the California Gulch site, and the Rocky Mountain Arsenal site.
   
• Represented various clients in several cost recovery actions, administrative enforcement proceedings, and PRP allocations at numerous Superfund sites across the country, including the following:
  
  
  • Purity Oil, Operating Industries, San Fernando Valley; Jibboom Junkyard sites in California;
     
  • Libby asbestos site in Montana;
     
  • Hardage site in Oklahoma;
     
  • Bunker Hill and Pacific Hide and Fur sites;
     
  • South Eighth Street Landfill site in West Memphis, Arkansas;
     
  • Lowry Landfill, Summitville, and PJKS sites in Colorado;
     
  • METCOA, Keystone, and Palmerton sites in Pennsylvania;
     
  • Operating Industries, Inc. in California for Tier III potentially responsible parties; and
     
  • Ralph Grey Superfund Site in California.

RCRA

• Wrote the RCRA Compliance Handbook (Executive Enterprises Co., Inc. 1989).  Several lawyers have lectured extensively regarding RCRA, including for Executive Enterprises and for the Rocky Mountain Mineral Law Foundation.
   
• Defended numerous companies against administrative compliance advisories, NOVs, and compliance orders with alleged penalties.
   
• Defended several companies in RCRA criminal actions, including a major battery manufacturer and an electroplating company.
   
• Negotiated numerous enforcement orders to accomplish cleanup of facilities, including a section 3008(h) RCRA Corrective Action Order on Consent with the EPA for a manufacturing facility in 2000, which had offsite vapor intrusion issues, and a Corrective Action Order on Consent under the Colorado Hazardous Waste Act with the Colorado Department of Public Health & Environment on behalf of an aerospace manufacturing facility.
   
• Negotiated many consent decrees for large-scale cleanups under CERCLA and RCRA, including the cleanup of the PJKS National Priorities List Site in Jefferson County, Colorado on behalf of a major defense contractor with involvement from the United States Air Force, Department of Justice, General Services Administration, and the Environmental Protection Agency, and for cleanup of the Rocky Mountain Arsenal in Denver, Colorado on behalf of a pesticide manufacturer.  When the United States brought suit at the Rocky Mountain Arsenal, it was considered the largest action of its kind at the time and involved the interplay between CERCLA and the Colorado Hazardous Waste Management Act.  The case involved a complex site where the Army manufactured chemical weapons from World War II until the 1980s and the manufacturer had produced pesticides from 1947 to 1982.
   
• Defended several Section 7003 imminent and substantial endangerment claims.
   
• Represented many companies requesting ongoing advice regarding RCRA issues, such as Bevill exemptions, waste characterization, recycling, and generator and transporter compliance issues.  These companies have included a major defense contractor, a large chemical company, a large graphic packaging company, and a large printed products and services company.
   
• Provided ongoing advice regarding RCRA requirements for closure and innovative ways to accomplish cleanup, including advice regarding corrective action management units.
   
• Represented companies in rulemaking proceedings regarding hazardous waste matters, such as rulemaking regarding integration of CERCLA and RCRA cleanups and delisting policies for a major aerospace manufacturer.
   
• Defended citizen suit actions under RCRA.
   
• Represented plaintiffs in citizen suit actions to compel environmental remediation activities, including sites in Utah, Colorado, and California.
   
• Provided in-house training to clients on federal and California RCRA requirements.

Clean Water Act

• Represented numerous clients in complex NPDES and state counterpart permit negotiations (process and storm water) involving metal mining, chemical manufacturing, aerospace manufacturing and oil refining operations.
   
• Represented numerous clients in defense of civil (judicial and administrative) penalty actions under Section 309(d) and (g) of the CWA and state counterparts in cases involving alleged permit violations.
   
• Represented numerous clients in criminal proceedings under Section 309(c) of the CWA.
   
• Represented numerous clients in government enforcement actions under CWA § 311 (oil and hazardous substance releases from pipelines, railroads, marine terminals, etc.), notably including the Cantara Loop derailment case (Sacramento River/Lake Shasta) – one of the worst environmental incidents in California history.
   
• Defended a client in a major California nuisance action initiated by the California Attorney General on behalf of the Central Valley RWQCB (obtained a highly favorable result for the client).  Also represented other defendants in California in negotiating WDRs with other Regional Water Quality Boards.
   
• Defense of clients in numerous CWA § 505 citizen suit actions (one major multi-party case currently pending in the U.S. District Court for the District of Colorado).
   
• Represented numerous “Industrial Users” in CWA § 307 POTW-initiated pretreatment enforcement actions.
   
• Represented numerous defendants in CWA § 404 enforcement actions initiated by U.S. DOJ on behalf of the EPA or the U.S. Army Corps of Engineers.
   
• Participated in significant rulemaking actions involving water quality standards/TMDL promulgation in Colorado, Utah, and other western states.
   
• Acted as legal advisor in numerous plant audits to determine CWA compliance status (under CWA §§ 311, 402 and 404, and implementing regulations).
   
• Dealt with CWA-ARAR compliance issues in the context of CERCLA site remediation – typically massive mining, milling, and chemical manufacturing sites (both multi and single PRP sites).

Other Water Quality Experience

• Supervised the transfer of all environmental permits required by the merger of two major oil companies.  These permit transfers included air, water, and various local environmental permits.  This comprehensive program involved refinery and other significant operations in California.
   
• Represented a major dry cleaning equipment manufacturer in various regulatory proceedings in California (Regional Water Quality Control Board) over the past 15 years, involving the use and disposal of perchloroethylenes.

Air

CAA PSD/NSR Permitting and Enforcement

• Assisted with obtaining a PSD permit for a coal-fired electrical power plant and defended environmental organization's challenge to same PSD permit before Air Quality Board, including successful challenge to argument that permit was invalid for failure to control greenhouse gases.
   
• Represented large utility in defense of alleged PSD and NSR violations at five coal-fired power plants.  Representation includes demonstration that no “significant net emissions increases” have occurred or that specific modifications have been “routine maintenance” for purposes of PSD/NSR.
   
• Assisted clients in developing BACT analyses and in advocacy before regulatory agencies regarding validity of BACT analyses.  Most recent engagement involved enforcement case against a natural gas company and resulted in favorable determination on BACT.  Ongoing representation of another company in enforcement case that involves disputes about BACT.
   
• Represented refinery client in responding to allegations that it violated PSD/NSR.
   
• Assisted refinery in addressing consent decree issues arising from PSD/NSR settlement.
   
• Assisted clients in avoiding PSD/NSR, and draft permit review to accomplish that result.
   
• Represented subsidiaries of $6 billion natural gas company in air quality enforcement cases in two states involving several types of operating facilities.  One of the cases has national implications.
   
• Represented midstream natural gas company in PSD enforcement case.
   
• Advised companies in transactions on risks associated with potential PSD applicability.
   
• Assisted companies in responding to massive Information Requests (and subsequent issues arising thereafter) under Section 114 of the Clean Air Act related to NSR/PSD enforcement initiatives.

CAA §112 Accidental Release Prevention

• Represented gas plants in compliance matters.

CAA NESHAP

• Represented large natural gas company in MACT enforcement and compliance issues at five compressor stations, and regarding potential construction of new stations.  Issues involve applicability disputes, performance testing, emissions monitoring, recordkeeping and reporting, interrelationship with Title V permitting, and new proposed rule revoking “Once-In-Always-In” policy.
   
• Represented company in response to NOV, advised on applicability of MACT regulations and on aggregation of emissions sources for major source determinations.

CAA Leak Detection and Repair (LDAR)

• Defended oil refinery in enforcement and compliance matters concerning alleged LDAR violations.
   
• Representing gas company regarding NSPS KKK regulations applicable to gas plants.

Title V Permitting

• Represented companies in all aspects of Title V permitting, from review for compliance with regulatory requirements, to assuring that permits are as protected as possible from enforcement by agencies and citizen groups.
   
• Negotiated Title V permit terms for sugar beet factory in Imperial County, California.

General

• Represented $13 billion Canadian-based oil and gas refining company in domestic environmental matters, including air quality.  Successful counseling to streamline permitting requirements at refinery and to defer enforcement.
   
• Major heating/cooling manufacturer regulatory counsel.  We undertook a comprehensive compliance analysis for all 35 local Air Districts in California to determine the Air District requirements for certifying that the client products met applicable NOx requirements.  We also completed a compliance analysis for the client’s products to establish compliance with European Union Regulation of Hazardous Substances (RoHS) and Waste Electrical and Electronic Equipment (WEEE).

NEPA

• Representing subsidiary of Fortune 100 company concerning environmental and NEPA aspects of construction of $100 million crude oil pipeline.  Counseled company on means to obtain NEPA categorical exclusions.
   
• Defeated NEPA and ESA challenge to geothermal energy project.
   
• Litigating NEPA issues in the United States Court of Appeals for the Ninth Circuit.  This appellate case concerns a mining exploration plan of operations for a large mining operation in Nevada.  We represent the mining company.
   
• Litigating in U.S. District Court over NEPA and other challenges to the issuance of a U.S. Forest Service permit for a hard rock mining operation in Montana.  Environmental groups are plaintiffs, and we represent the mining company seeking the permit.  A host of complex environmental issues are at the heart of this litigation.
   
• Advising a municipality about all aspects of NEPA compliance associated with a project to build a billion dollar pipeline that will transport municipal water supplies.  The Bureau of Reclamation is responsible for this EIS. Our work in this years-long project includes advice about scoping; careful formulation of a purpose and need statement; reviewing major changes to a no-action alternative in detail; managing and reviewing the voluminous technical reports underlying the EIS; and creating a strategy for the release of the DEIS and acceptance of public comment.  As the process continues, we will help our client with responses to public comments, formulation of the final EIS, and the creation and release of a Record of Decision.  We assist our client with complex and difficult government and community relations issues associated with its project, and we also work closely with all the technical consultants involved.
   
• Advising a municipality about an EA (and anticipated FONSI) associated with the operation and alteration of a transbasin water supply system.  Our work includes advising about a request for proposal to hire a consultant to create the EA; countering anticipated opposition to aspects of the EA; scoping and associated issues; and working with the government agency responsible for the NEPA process.  The agency involved again is the Bureau of Reclamation.
   
• Advising a municipality that may oppose the operation of another complicated water supply system that benefits a separate group of municipal entities.  Our advice includes careful evaluation of the project and its effect upon our client; advice about how the NEPA process will proceed in this project and opportunities for our client to attempt to achieve its goals; and advice about community relations and political issues.
   
• Representing oil and gas clients on drilling-related NEPA issues in Wyoming, Colorado, and other states.
   
• We have extensive experience litigating NEPA issues before the United States Department of the Interior Board of Land Appeals.  We have litigated many appeals before that agency that involve NEPA challenges to various uses of the public lands.
   
• Represented a coal mine seeking a federal lease.  We addressed issues including the adequacy of an EA supporting the lease sale and cumulative effects.
   
• Assisted an aerospace client in negotiations with a federal agency concerning NEPA issues. We persuaded that agency that NEPA did not bar the award of a contract to our client.
   
• Represented a county in litigation in federal court involving claims that a supplemental EIS should have been prepared for the construction of a highway.
   
• Represented an oil and gas company in litigation in federal court involving claims that an EIS should have been prepared for an oil and gas seismic exploration project.
   
• Assisted a client interested in acquiring a ski area and year-round resort in Colorado with careful review of a final EIS and advice concerning its adequacy.
   
• Represented a large mining company attempting to open a major mining project that required NEPA evaluation and decision making by the United States Forest Service.  We advised our client in great detail about the NEPA process and how it might affect that project, and we assisted our client to negotiate aspects of the NEPA process.  This project eventually was abandoned for reasons unrelated to NEPA.
   
• Defended in litigation the issuance of a FONSI following an EA written by the Federal Aviation Administration.  This EA concerned the introduction of commercial jet traffic into a popular rural airport located near a National Park.  The federal decision involved was the issuance of operations specifications.  We successfully assisted our airline client to obtain the permission it required.
   
• An HRO partner taught NEPA in an environmental law class at the University of Denver Law School for several years.
   
• An HRO partner drafted Good Samaritan legislation introduced in the U.S. Senate that included an exemption from NEPA compliance in carefully delineated situations.
   
• Represented Bob Hope and Phoenix Sky Harbors during the development of state and federal environmental impact statements, including 9th Circuit litigation on Clean Air Act conformity issues.

State NEPA:  In a state like California that has its own state law NEPA statute, we have advised clients on compliance strategies and litigated on their behalf in state court.  Specific projects include:

• Devised a California Environmental Quality Act (CEQA) compliant strategy for hard rock mining in a Northern California wilderness area.
   
• Represented the County of Orange in litigation under CEQA for a county jail expansion.

Endangered Species Act

• Represented natural resource companies as intervenors in litigation brought by environmental advocacy groups against various federal agencies challenging Biological Opinions and rights to develop federal land.
   
• Routinely represent clients in complying with ESA requirements.

Toxic Tort Litigation

HRO has nationwide, sophisticated toxic tort expertise.  We have defeated class actions, successfully tried cases, and won cases on motions for summary judgment.  We also have significant Daubert hearing experience, depth and breadth in expert witness expertise, and have settled complex cases in which the precedental value has made settlement challenging.  We have an exceptional group of experienced litigation support personnel who make document management and discovery efficient and enable us to productively use Lone Pine and other case management strategies.

We represent companies of all sizes from Fortune 50 clients to small businesses – defending allegations of all types of personal injury and property damage from contamination from virtually any substance – solvents, radioactive substances, mining waste, ammonium perchlorate, heavy metals, asbestos, pesticides, and petroleum hydrocarbons.  The firm has represented chemical manufacturers, aviation and aerospace companies, defense industry companies, oil companies, and others in complex litigation in both federal and state courts.  We have defended putative classes purported to include 100,000 persons, and others in which the damages sought were as much as $500 million.

Regulatory Compliance and Permitting

HRO’s environmental practice team brings a prevention-oriented approach to environmental compliance.  The environmental team has decades of experience in a number of regulatory areas, including the following:

• Provided advice to coal-fired power plants and oil and gas clients on air quality enforcement and compliance matters such as construction permits, operating permits, major source determinations and source aggregation, avoiding PSD/NSR, BACT analyses, MACT standards, leak detection and repair, and accidental release prevention.
   
• Substantial experience in complying with the hazardous air pollutant regulations at 40 C.F.R. Part 63 Subparts HH, HHH and ZZZZ governing oil and natural gas production, transmission, and the reciprocating internal combustion engines (RICE) associated with these facilities.
   
• We have assisted clients in obtaining permits regulating water quality, wetlands, air quality, radioactive materials, mined land reclamation, and hazardous waste management.  With our assistance, clients have obtained permits for manufacturing, oil and gas production and transportation, wind farms, hazardous waste, mining, geothermal, oil shale, aviation and aerospace, railroad, engineering and construction, uranium milling, petroleum refining, and metal mining and milling operations.
   
• Assisted clients in responding to numerous emergency spills and releases as on-scene legal counsel, including an incident involving over 60 federal, state, and local government agencies.  We also assist clients across the country to develop Spill Prevention, Control and Countermeasure plans.
   
• Advised clients in a range of industries on detailed procedures for self-audits and disclosures.
   
• Defended clients in the natural gas, mining, aerospace, electric generation, asbestos, and  electroplating industries facing administrative enforcement actions under CERCLA, RCRA, CWA, OSHA, the CAA, and their state counterparts.
   
• Represented clients in rulemaking proceedings before the Colorado Water Quality Control Commission, Public Utilities Commission, and Air Quality Control Commission.
   
• Assisted in developing NEPA documents required for construction of a $100 million crude oil pipeline, numerous oil and gas drilling projects, coal and hard rock mines, a ski resort, airports, highway construction and water supply systems, including a billion dollar water delivery pipeline.
   
• Drafted Voluntary Cleanup Plans for residential and commercial use in Arizona, California, Utah, Nevada, New Mexico and Colorado.  This work has included the representation of railroads, developers, mining, manufacturing, and other industrial use clients to achieve certainty with environmental regulators and prospective purchasers.
   
• Advised clients regarding the transactional impacts of CERCLA, the Endangered Species Act, National Historic Preservation Act, the Clean Air Act, and other environmental statutes, including the transfer of permits.
   
• Negotiated prospective purchaser agreements, comfort letters, and no further action letters, as well as consent decrees for closure and remediation of brownfields.
   
• Drafted OSHA and Cal OSHA compliance plans and defended clients in the construction, oil and gas, and chemical industries.

Transactional

The team has extensive experience in representing buyers, sellers, lessors, lessees, underwriters, investors, lenders, and borrowers in addressing environmental issues in transactions. We have represented a wide spectrum of industries in this area, including biotechnology, aerospace, railroads, uranium mining and milling, electronic manufacturing, metal mining, banking, high technology, petroleum, telecommunications, real estate development, and heavy construction, as well as private equity funds. We are focused on providing the most cost-effective service for all sizes and complexity of transactions, whether involving one asset or stock purchases and mergers involving hundreds of manufacturing facilities throughout the world.

Brownfields

Brownfields Overview: HRO has an extensive brownfields practice, based on the core of a steady practice of advising on contaminated properties, including CERCLA, RCRA, and state Voluntary Cleanup Plans throughout the western United States and beyond.  HRO uses environmental covenants and other land use tools to support these efforts as well as negotiating prospective purchaser agreements, comfort letters, and no further action letters.

Brownfields Financing: HRO’s brownfields financing expertise arises from the sophistication of its real estate financing practice, coupled with its knowledge of and experience with utilizing funds from grants, tax credits, as well as other forms of public/private financing.  In addition, HRO provides advice and support regarding transaction structuring and corporate governance issues.

Brownfields Environmental Insurance: In brownfields transactions, HRO advises clients regarding the legal impacts of the various insurance options available.  Our experience negotiating insurance requirements includes, for example, Cleanup Cost Cap and Pollution Legal Liability policies, as well as Risk Transfer Mechanisms.

Brownfields Due Diligence: Our due diligence practice regularly involves negotiating environmental indemnities, representations, and warranties, as well as supporting and evaluating Phase I and Phase II (“all appropriate inquiry”) due diligence efforts.

Brownfields Development: Our development work regularly involves land acquisition and assemblage; annexation, zoning and rezoning; facility siting and infrastructure issues; traffic, parking and transportation planning; subdivision and platting; variances, permits and licenses; development agreements and vested rights; leasing; and a variety of other issues.

Climate Change

Climate Change practice area page.

OSHA

HRO represents manufacturing, industrial, mining and milling, heavy construction, petroleum, railroad, high technology and other clients in a wide spectrum of OSHA compliance and enforcement matters. Recent experience includes defense of an asbestos enforcement action, the lockout/tagout standard, hazardous waste and emergency response standard, hazard communication standard, personnel protective equipment, confined spaces, OSHA's proposed ergonomic standard, whistle blower issues (Section 11 (c)), recordkeeping, enforcement issues, including inspections (search warrant issues), and OSHRC appeals. We have conducted OSHA audits of manufacturing plants to assist in determining the state of compliance. HRO's approach to OSHA is one described as "recognition and prevention."