Environmental Law

Prominent Environmental Law Firm

Many of our attorneys have strong experience in regulatory law, and come to us after working with state and federal agencies. With experience as former employees of the U.S. Department of Justice, the Environmental Protection Agency, the President’s Council on Environmental Quality, and the Utah Attorney General’s Office, our environmental law group has the depth of knowledge necessary to advise corporate and individual clients on all aspects of the Clean Air Act and all other areas involving environmental law.

We handle complex national and international environmental law issues

Our scope is national and international with emphasis on the western United States and South America. We have represented clients in complex transactions, rulemaking, and compliance disputes, and have litigated environmental cases in U.S. District Courts, state courts, the U.S. Courts of Appeal and the U.S. Supreme Court.

We invite you to learn more about our experience in the area of environmental law and the Clean Air Act. Our firm has assisted clients in successful resolutions of cleanups, cost recovery actions, liability allocation, related toxic tort claims and related insurance coverage negotiations and litigation. Our environmental law and litigation practice is broad and deep, reflecting the presence of highly experienced senior partners and skillful younger associates.

Appeals and Litigation

Parsons Behle & Latimer’s environmental lawyers routinely represent clients in environmental litigation in and outside of Utah and Nevada, and have recently or are currently handling matters in California, Idaho, Illinois, Michigan, Minnesota, Missouri, Montana, New York, Oregon and Washington. Several of our environmental litigators previously worked in the federal government, including the U.S. Department of Justice, U.S. Attorneys Office and the U.S. Environmental Protection Agency, giving them the knowledge and experience to represent corporate and individual clients in all types of environmental litigation.

We have significant experience in defending or bringing cost recovery litigation under CERCLA, RCRA, and state law. The firm also has substantial knowledge and skill in the area of defending and settling civil enforcement actions with state and federal regulators under the Clean Air Act, Clean Water Act, RCRA, and similar state statutes. Our environmental litigators achieve cost-effective settlements with regulatory authorities through command of the facts, skillful use of expert consultants and careful scrutiny of the applicable regulations and guidance documents.

With intensified efforts by federal and state governments to bring criminal enforcement actions against companies and their officers and managers for violations of environmental laws, our lawyers closely monitor developments and advise and defend clients accordingly. We regularly represent corporate and individual clients in connection with environmental criminal investigations and enforcement actions.

Defending clients in citizen suits is another area of strength at Parsons Behle & Latimer. Most federal environmental statutes contain “citizen suit” provisions that allow environmental and public interest groups to bring an action against an individual or company that has allegedly violated environmental laws. These statutes allow the citizen group to recover attorney’s fees if they prevail in litigation or settle the case and have become a favorite legal tool of opponents of development projects and industrial activities. The firm has extensive experience defending citizen suits.

Attorneys focused on this area:

• Tundermann, David W.
• Wilson, John B.
• Pos, Hal J.
• Bailey, J. Michael
• Kapaloski, Lee
• Ford, Lindsay M.
• Butler, Jim B.
• Malmquist, Michael J.
• Kirschner, Lisa A.
• Zody, Michael A.
• Hill, Earl M.

Regulatory litigation

We also handle a wide range of regulatory litigation including litigation and adjudication involving challenges to permit decisions, rulemaking challenges and other administrative actions. Our environmental litigators also assist clients with environmental/toxic tort claims and environmental insurance litigation.

In addition to litigation, we recommend alternative dispute resolution in many instances as a viable means to resolve complex environmental litigation or to avoid litigation altogether. Parsons Behle & Latimer routinely represents clients in arbitration and mediation proceedings, and several of the firm’s attorneys are certified mediators.

Brownfields

Applying our extensive experience representing clients in cleanups at Superfund and other contaminated sites, Parsons Behle & Latimer has developed substantial experience in representing developers, prospective purchasers and lenders concerning the cleanup and development of abandoned or underutilized contaminated sites, often referred to as Brownfields sites. Brownfields sites have historically posed significant legal challenges that have discouraged their cleanup and development. However, changes in federal law, together with private sector initiatives, have resulted in a more streamlined and cost effective regulatory process and the limiting of liability of developers and prospective purchasers of Brownfields sites. Our attorneys have closely followed these changes and initiatives and have been actively involved in legislative efforts to implement these changes in both Utah and Nevada.

The firm currently represents clients in significant Brownfields projects in both Utah and Nevada. Our attorneys have extensive experience in negotiating and drafting agreements with the government and private parties that limit the liability of our developer clients, obtaining government permits and approvals, and finding insurance products and negotiating and drafting insurance policies that address a wide range of potential liabilities and risks associated with the acquisition, cleanup and development of Brownfields sites. As an example, the firm negotiated and drafted the various agreements that allowed a client to investigate, clean up and secure “no further action” commitments from the government that allowed the development of over 2,000 acres of contaminated industrial property in the Las Vegas area for recreational, commercial and residential uses.

Attorneys focused on this area:

• Bird, David R.
• Tundermann, David W.
• Pos, Hal J.
• Ford, Lindsay, M.
• Butler, Jim B.
• Angell, Richard J.
• Schipaanboord, Jacob L. 

Clean Air Act

Parsons Behle & Latimer’s air quality practice embraces permitting, regulatory, and compliance issues. While we have extensive air quality experience in Utah and Nevada, our attorneys have also engaged air quality matters throughout the country including the states of Alabama, Arkansas, Colorado, Idaho, Michigan, Missouri, Washington and Wyoming. We have assisted a wide variety of industries in air quality matters including mining, refining, natural gas, and manufacturing. Our air quality practice group is headed by a former registered professional engineer, allowing for the seamless integration of technical and legal facets into effective and efficient solutions for our clients.

Attorney focused on this area:

• Tomko, Michael J.
• Angell, Richard J.
• Hill, Earl M.
• Keller, Alysa M.

Permitting. Parsons Behle & Latimer recognizes that air quality permits are often a critical-path approval for a successful project. We have assisted clients in obtaining permits for a wide variety of new facilities and modifications. Our permitting experience spans the spectrum from minor NSR permits (state construction permits) to major NSR (PSD) to Title V operating permits. Understanding the complexities and nuances of the permitting programs has enabled us to assist clients in obtaining fast track approvals for modifications, or favorable non-applicability determinations that allow projects to proceed without permitting. We interface with clients, consultants and regulators to achieve permitting results. Depending on the client’s needs and preference, our role on permitting projects has ranged from outlining a permitting strategy, to facilitating communications with agencies, to reviewing applications and draft permits, to addressing focused questions, to acting as the project manager.

Regulatory. While many of the major initiatives from the Clean Air Act Amendments of 1990 have been implemented, the regulatory landscape at both the federal and state levels continues to be dynamic. Parsons Behle & Latimer has participated extensively in air quality rulemakings, particularly at the state level but also at the federal level as necessary to assist clients. For example, at the federal level we have submitted comments on behalf of clients (or coalitions of clients) on national ambient air quality standards, the new source reform effort, and on the definition of a “federally permitted air release” as it relates to hazardous substances. Our state rulemaking efforts have included rulemakings related to the Title V operating permit program (Parsons Behle & Latimer was extensively involved in the Utah and Nevada operating permit programs), toxic air modeling, introducing flexibility into state air programs, state upset exemptions and the implementation of “credible evidence.” More recently, we have been involved in implementing the NSR reforms in Nevada and are preparing to undertake a similar effort in Utah.

Compliance/Enforcement. Our air group regularly counsels clients to assist them in avoiding enforcement problems. This begins with obtaining reasonable and attainable permit conditions, carefully documenting the bases for permit decisions, and seeking agency concurrence as appropriate. We provide focused air quality audits to help ensure a high level of compliance assurance, and when necessary assist clients in assessing enforcement issues, including the applicability of amnesty programs such as state and federal self-evaluation privileges. We have negotiated fair and reasonable settlements with state agencies and EPA and have utilized creative settlement opportunities such as supplemental environmental projects. We recently obtained a favorable result for a client in a state civil penalty action for alleged air violations, by prevailing on a motion for partial summary judgment and significantly reducing the penalty amount. Our extensive knowledge of Clean Air Act issues gives us an edge over general practitioners in resolving enforcement matters.

Clean Water Act/Wetlands

Our water quality group has extensive experience in a wide variety of water quality permitting, enforcement and regulatory matters. We have worked on such issues throughout the Intermountain West and in other areas of the country, serving a diverse clientele that includes major mining and manufacturing companies, municipalities, commercial and residential developers, and state and national trade associations. The group is headed by an attorney with a master’s degree in biology, enhancing the group’s ability to evaluate and address legal issues that include a scientific component, which are typical of water quality matters.

With regard to the federal Clean Water Act, we routinely assist clients in obtaining permits and in the assessment and development of solutions to other issues arising under the “point source” permit programs administered by state agencies and the Environmental Protection Agency. We work with a variety of field offices and districts of the U.S. Army Corps of Engineers in helping clients obtain “dredge and fill” permits for wetlands and other waters. We also have experience with regard to the listing of “impaired waters” and the development of TMDLs; the development of general and permit-specific water quality standards; POTW pretreatment matters; and jurisdictional determinations.

Attorneys focused on this area:

• Kirschner, Lisa A.
• Malmquist, Michael J.
• Bird, David R.
• Kapaloski, Lee
• Ford, Lindsay M.
• Hill, Earl M.
• Keller, Alysa M.

Safe Drinking Water Act

Our attorneys also have significant experience with the Safe Drinking Water Act, and we advise clients who operate public and private water treatment and delivery systems on permitting, regulatory and compliance issues. Other clients have relied on the firm for help with source water protection issues and in the development of MCLs.

Our group also regularly helps clients comply with a variety of state water quality programs, including those that regulate groundwater standards and discharge permits, stream alteration permits, and riparian or wetland permits.

The Water Quality Practice Group is also experienced at defending enforcement actions before administrative agencies and in the courts. Our representation of clients has spanned from negotiating administrative settlements and consent decrees, to full scale litigation, to preparing briefs for a client participating as amici in a wetlands-related matter before the United States Supreme Court.

We also assist clients in their efforts to shape water quality policies and rulemaking. Our experience is substantial, ranging from participation in rulemaking comment efforts at both the state and national level on behalf of individual entities and coalitions, to representing client and industry interests on policy “work groups” alongside regulators and NGOs. Our detailed knowledge of federal and state water quality and drinking water laws and regulations has allowed us to be effective in helping our clients influence water quality policy decisions.

Endangered Species Act/Wildlife

Our environmental team handles matters and cases related to the ESA, the Migratory Bird Treaty Act and other federal and state wildlife protection laws. We routinely counsel clients as they work their way through the “consultation” process under the ESA or state species protection laws. Our attorneys also advise clients regarding the potential or alleged “take” of protected plant and animal species and assist them in formulating legally adequate mitigation plans when wildlife impacts are unavoidable. We have advised or are currently advising clients on matters involving numerous endangered, threatened or sensitive species including wolves, lynx, trout and other native fish, snails, tortoise, grouse, eagles, and plovers.

Attorneys focused on this area:

• Butler, Jim
• Malmquist Michael J.
• Kirschner, Lisa A.
• Hill, Earl A.

Environmental Management

As a result of substantial knowledge of issues affecting environmental law, our attorneys understand the importance of establishing environmental management and compliance programs that assist our clients in understanding and addressing the complexities of federal, state and international environmental laws and policies and protect them from potential liabilities and public relations issues arising under the same. We work with clients to develop proactive environmental management systems.

In addition, we frequently:

• Perform corporate-wide and site-specific environmental audits involving facilities in numerous jurisdictions including Utah, Nevada, Arizona, Montana and other western states, and in Latin American countries including Bolivia and Peru
• Create environmental compliance programs for major land development, mining and manufacturing clients
• Assist clients in the development of company environmental policy or “mission” statements, sustainable development policies, and a range of other environmental management system documents

Attorneys focused on this area:

• Tundermann, David W.
• Pos, Hal J.
• Ford, M. Lindsay
• Kirschner, Lisa A.
• Tomko, Michael J.
• Angell, Richard J.
• Hill, Earl M.
• Keller, Alysa M.

Insurance Coverage

Historic comprehensive general liability policies and the more recent environmental insurance policies can often play an integral role in settling complex and expensive cost recovery actions, toxic tort actions and other environmental claims. Our attorneys have extensive experience litigating against and negotiating with insurance companies concerning defense and indemnity coverage relating to cleanup sites and toxic tort claims. For example, we recently represented a client in a cost recovery litigation filed in Minnesota against several insurance companies relating to environmental cleanups at seven mine sites across the United States. The case involved claims exceeding one hundred million dollars against primary and excess insurers, and was recently settled on very favorable terms to our client. Our firm has also represented a natural gas client against insurance companies relating to numerous cleanup sites and environmental toxic tort claims. In addition to coverage litigation, our firm has a growing practice representing clients, principally developers, in negotiating and drafting new environmental insurance policies that protect against remediation cost overruns and future third party claims.

Attorneys focused on this area:

• Tundermann, David W.
• Pos, Hal J.
• Bailey, J. Michael
• Butler, Jim B.
• Dykes, Mark W.

National Environmental Policy Act (NEPA)

Due to extensive federal land holdings and the significant involvement of federal agencies like the Bureau of Reclamation, the Bureau of Land Management and the Forest Service, most energy and resource projects and many industrial projects in the West require compliance with NEPA. Our firm has developed an extensive practice advising a variety of small and large clients regarding the NEPA compliance process, including mining, energy (electric, natural gas, nuclear), and waste disposal companies; state highway departments and other state agencies; local governments and special service districts; and citizens and business coalitions. We assist in the drafting, review, defense, and sometimes the challenge of environmental assessments and environmental impact statements, and provide advice regarding the use of NEPA categorical exclusions. Litigation before administrative agencies and courts in matters involving NEPA compliance is another area of concentration.

Examples of our NEPA-based work include:

• Defense of large mining companies in federal court against NEPA claims brought by anti-mining interests, including cases heard by the Ninth and Tenth Circuits and the U.S. Supreme Court
• Defense of the NEPA compliance for a hazardous waste incinerator in Utah against opposition groups
• Assisting clients and agencies in the development of EAs, EISs, or categorical exclusions for power plants in Nevada; natural gas pipelines in Utah, Colorado and Wyoming; mining and exploration operations in Utah, Montana, Nevada, Oregon, and Washington; and highway projects in Idaho and Utah
• Securing withdrawal of an EIS for a dam and trans-basin diversion project on behalf of a coalition of irrigators, municipal and industrial water users, cities, fishermen and conservation groups

Attorneys focused on this area:

• Hull, Stephen J.
• Winmill, Patricia J.
• Bulter, Jim B.
• Malmquist, Michael J.
• Schulte, Elizabeth A.
• Hill, Earl M.

Permitting and Compliance

Parsons Behle & Latimer’s environmental lawyers assist businesses and developers in applying for, obtaining, defending and complying with virtually every kind of permit required for siting, constructing, operating, maintaining or closing a natural resource, energy, manufacturing, food processing, or other industrial project. These include air quality, water quality, solid and hazardous waste, wetlands, and water right permits from federal and state agencies as well as local environmental, zoning and land use authorizations and real property entitlements.

By working with clients to obtain and, as necessary, defend the necessary government approvals, our attorneys have helped establish and/or maintain some of the most significant industrial, energy and natural resource facilities and projects in the West and in Latin America, including world-class gold, copper, magnesium and other base- and precious-metal mines; electrical power plants and transmission lines; petroleum and chemical refineries, metal smelters and semiconductor manufacturing plants; food processing plants; water treatment and water collection and conveyance facilities; cement plants; natural gas pipelines; solid and hazardous waste disposal facilities and incinerators; and a myriad of other facilities.

We also advise environmental managers and other client representatives in their ongoing efforts to ensure their facilities and operations remain in compliance with the intricate web of federal, state and local environmental laws and regulations. Because PB&L’s environmental lawyers typically specialize in one or two areas of the law, they are particularly able to establish and maintain constructive working relationships with regulatory agencies and staff, and to keep detailed track of the ever-changing regulatory framework, in their substantive area of skills. These relationships and extraordinary knowledge also ensure that our attorneys are able to effectively and proactively represent our clients on those occasions when operations may have exceeded a regulatory threshold and it becomes necessary to negotiate, and potentially to litigate, with regulators over threatened or actual enforcement action. We have a strong record of helping our clients avoid environmental compliance and enforcement issues and, in those instances where such issues prove unavoidable, of helping obtain favorable outcomes whether it involves settlement negotiations or administrative or judicial litigation.

Attorneys focused on this area:

• Butler, Jim B.
• Malmquist, Michael J.
• Tomko, Michael J.
• Kirschner, Lisa A.
• Bird, David R.
• Ford, Lindsay M.
• Angell, Richard J.
• Hill, Earl M.
• Keller. Alysa M.

RCRA/Hazardous & Solid Waste

Parsons Behle & Latimer advises clients on all aspects of hazardous substances, hazardous waste and solid waste management, permitting, transportation, compliance counseling and litigation.

Current or recent projects include:

• Defending an industrial client in litigation involving alleged violations of RCRA, including claims under the Bevill Amendment. This matter involved litigation and negotiations with EPA and the Utah Division of Solid and Hazardous Waste
• Counseling clients regarding opportunities for avoiding the applicability of hazardous waste regulations through recycling and various non-permit options for on-site management of wastes
• Defending an industrial client against a threatened citizen suit under RCRA. This matter involved negotiations with the citizens and with state agencies to avoid the threatened litigation
• Representing a developer who purchased and developed approximately 1700 acres of contaminated property from the United States Army. Other Base Realignment and Closure (BRAC) work includes the closure and subsequent disposition of the Defense Depot Ogden. These matters involve negotiations with the United States Army, EPA and the Utah Division of Solid and Hazardous Waste concerning the level of remediation, future uses and restrictions for the property, and transfer documentation
• Representing a municipality in litigation over liabilities associated with a municipal solid waste landfill. This matter involved advising the client about municipal solid waste landfill requirements and negotiating a settlement allocating liabilities among the parties
• Representing a chemical supplier whose facility is undergoing investigation and possible remediation of soil and ground water contamination. This matter involves negotiations with the Utah Division of Solid and Hazardous Waste concerning the investigation, remediation and level of remediation; and negotiations and possible litigation with insurance companies concerning recovery of investigative and cleanup costs
• Representing an owner of contaminated industrial property in negotiating approval from the Utah Division of Solid and Hazardous Waste for the closure of a hazardous waste management unit under the Division’s risk-based closure and cleanup standards rule
• Representing manufacturing and mining companies in rulemaking and legislative initiatives in Utah, Nevada and at the federal level

Attorneys focused on this area:

• Bird, David, R.
• Tundermann, David W.
• Pos, Hal J.
• Ford, Lindsay M.
• Butler, Jim B.
• Hill, Earl M.

Superfund

The firm has a long history of representing clients at listed or potential Superfund sites. Such representation typically includes defending clients against government and third party claims, advising clients throughout the Superfund process from the initial CERCLA Section 104(e) request for information through the certification of completion of the remedial action and delisting of the Superfund site. We have represented clients at many different types of sites, including mining, coal gasification, chemical formulating facilities, dry cleaning, and waste oil disposal and recycling sites.

Our representation has involved:

• Drafting PRP committee agreements and joint defense agreements
• Negotiating and drafting administrative orders on consent and consent decrees, de minimis settlement agreements and monitoring the remedial investigation, feasibility study, Record of Decision, remedial design, remedial action and operations and maintenance phases of the Superfund process
• Defending against EPA and private party cost recovery actions and pursuing cost recovery claims against third parties and pursuing reimbursement claims against the Superfund
• Drafting institutional controls tailored to the likely future use of the property to expedite the cleanup process
• Developing favorable allocation methods as defenses to liability
• Pursuing defense and cleanup costs against insurers

Representative or current projects include:

• Representing a major mining client in multi-party CERCLA cost recovery litigation brought by the EPA
• Counseling and representing the owner of a former smelter property in allocation, remediation and development negotiations with other owners, the former smelter operator, and the EPA and state and local governments. At this Brownfields property the owners, the former smelter operator and pertinent government agencies are in the process of cleaning up and redeveloping the site into a business and commercial park. The parties successfully used facilitators and alternative dispute resolution to avoid litigation
• Representing a potentially responsible party at the Wasatch Chemical Superfund sites, including defending claims by EPA, the State of Utah and other potentially responsible parties; pursuing cost recovery actions against potentially responsible parties and the client’s insurance carriers; developing strategies concerning the remedial investigation/ feasibility study, treatability studies and an endangerment assessment; negotiating removal orders and consent decrees; developing ARARs and institutional controls; and drafting settlement agreements with potentially responsible parties and insurance carriers. The client saved approximately $25 million in remedial costs through the development of an innovative technology, in-situ vitrification, over EPA’s preferred remedial alternative of incineration. Additionally, the client recovered all defense and indemnity costs incurred and anticipated to be incurred through completion of the remedial action at these sites
• Litigation and settlement negotiations in a large natural resources damages actio
• Representing oil refinery owners against prior owners and operators seeking cost recovery and indemnification for environmental contamination
• By utilizing these and other tools, we have obtained resolutions of either no liability or limited liability to our clients or substantial recoveries against third parties and the client’s insurers

Attorneys focused on this area:

• Tundermann, David W.
• Pos, Hal J.
• Ford, Lindsay M.
• Butler, Jim B.
• Angell, Richard J.
• Hill, Earl M.

Underground Storage Tank Litigation

In addition to underground storage tank (UST) cleanups, Parsons Behle & Latimer has extensive experience litigating and/or settling UST cases in both administrative and judicial forums. Recently, we successfully defended clients against sophisticated plaintiffs such as Hertz, Delta Airlines, Shell Oil, U.S. West, Chevron and Amoco Oil. Our environmental attorneys also defend Husky Oil and Marathon Oil in UST litigation throughout the western United States. UST matters are currently pending in California, Idaho, Montana and South Dakota.

Representative cases/matters include:

• Canal Ins. Co. v. Utah DEQ, No. 95-0900269 (Third District Court, 1997) (our client dismissed on motion for summary judgment)
• Hertz v. Utah-Driv-Ur-Self, Inc., No. 92-C-837 (D. Utah 1996) (favorable settlement in multiparty action involving airport, airlines and national rental car agency)
• Gramercy Enterprises v. Woolsey, No. CIV96-0226-S-BLW (D. Utah 1997) (settled for a de minimis amount)
• In re Dunn Oil, Facility No. 4000093-A before the Executive Secretary (UST) (1996) (settled for a de minimis amount against large oil and pipeline companies in an administrative action under the Utah UST Act)
• Proceedings regarding old service station properties in several Western states, including Utah, Washington, Montana and South Dakota. Some of these proceedings have gone to trial or hearing; most have settled with favorable terms

Attorneys focused on this area:

• Tundermann, David W.
• Bailey, J. Michael
• Angell, Richard J.

Click here to view our environmental law represenative case list.

Contact: Michael J. Malmquist, 801.536.6658, mailto:MMalmquist@parsonsbehle.com, or Hal J. Pos, 801.536.6725, mailto:HPos@parsonsbehle.com.