Environmental Law

Davis Graham & Stubbs LLP is widely known for its environmental expertise. We are staffed with some of the best environmental attorneys in the country who works with clients to ensure compliance, minimize potential exposure to environmental liability, and win cases when litigation arises.

We have a wealth of knowledge and experience in handling a broad array of compliance, permitting, transactional, enforcement, and litigation matters. These often include issues pertaining to air and water quality, solid and hazardous wastes, underground storage tanks, spills and releases, remediation, brownfields, corrective action, cost recovery, and other environmental and natural resource issues.

Clean Air Act

DGS environmental lawyers have represented clients in important aspects of air quality regulation and enforcement defense for many years. The firm’s air quality clients include extractive industries, manufacturers, and small businesses. Areas of particular experience include enforcement defense and civil penalty negotiation, Title V operating permit application and compliance, and auditing of stationary source facilities for compliance with state and federal requirements. The firm’s air quality involvements on behalf of multiple clients have included participation in numerous rulemakings concerning new source review reforms, ozone control strategies, leak detection and repair for oil and gas facilities, and malfunction defense reforms. We have also conducted pre- and post-acquisition audits of stationary source facilities, and have advised clients on the disclosure of discovered noncompliance events under federal and state audit policies.

CERCLA and Natural Resource Damages

DGS has experience in all aspects of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. We have defended significant governmental cost-recovery actions, and numerous private-party contribution actions. DGS attorneys routinely apply their expertise to evaluate potential exposure to CERCLA and other environmental liabilities for clients in mergers and acquisitions. We frequently work with clients in brownfield redevelopment and similar property transactions to ensure that all requirements are met. We also provide remedial oversight at major CERCLA Superfund sites across the country. Our clients have relied on us to ensure that their environmental response actions are consistent with the requirements of the National Contingency Plan, to challenge the adequacy of other parties’ response actions, and to review and comment on governmental response actions. Our lawyers have been heavily involved in CERCLA natural resource damages actions since the mid-1980s, representing clients such as, General Electric, Union Pacific, and Viacom.

Resource Conservation and Recovery Act

We have considerable experience in the regulation of hazardous wastes generated in the oil and gas, mining, and manufacturing industries that are regulated under the Resource Conservation and Recovery Act (RCRA). We are intimately familiar with the scope and limitations of the “E&P” and “Bevill” exemptions under RCRA and the “petroleum exclusion” under CERCLA. All of our lawyers practicing in this area have counseled major oil and gas, mining, and manufacturing clients on the intricacies of compliance with solid and hazardous waste laws and regulations at their facilities across the U.S., and have worked with federal and state regulators, including oil and gas commissions, in negotiating the outcome of sites where these materials have come to be located.

Clean Water Act

DGS represents clients in a wide range of permitting, enforcement and compliance matters under the federal Clean Water Act and comparable state laws throughout the U.S. Our lawyers are experts at dealing with non-point source pollution as well as changes in the National Pollutant Discharge Elimination System program. We continue to litigate Clean Water Act jurisdiction issues on behalf of our clients, including the scope of activities regulated under the Act. 

Endangered Species Act and Other Fish and Wildlife Statutes

DGS attorneys routinely assist clients in Endangered Species Act and other fish and wildlife matters that arise in conjunction with their oil and gas, mining, recreational, real estate, and water projects. We have worked closely with the U.S. Fish & Wildlife Service, Bureau of Land Management, U.S. Forest Service, and state and tribal fish and wildlife agencies in developing successful solutions to Endangered Species Act and other fish and wildlife issues. We have also successfully represented clients in federal courts throughout the West in defending challenges to decisions approving our clients’ projects on such grounds.

National Environmental Policy Act 

DGS assists clients in effectively participating in all phases of the National Environmental Policy Act (NEPA) process. Our services range from counseling clients on influencing federal decisions through participation in NEPA’s public comment process, to bringing and defending administrative challenges to agency decisions, to litigating NEPA matters in federal courts throughout the country. DGS regularly represents clients proposing projects that require resort to the NEPA process, including oil and gas, coal, hard rock mining, real estate development, and water supply projects. Our clients on NEPA matters include most of the major oil and gas exploration and production companies operating in the West and in Alaska; coal companies operating in the Powder River Basin, Colorado, Arizona, and New Mexico; hard rock mining companies with operations in Alaska, California, Washington, Oregon, Montana, Nevada, Utah, Wyoming, Colorado, and New Mexico; industry trade associations headquartered in Washington, D.C., and Montana, Wyoming, Colorado, and New Mexico; governmental entities, including the State of Wyoming; and Indian tribes.

Underground Storage Tanks

Attorneys at DGS have represented clients in underground storage tank (UST) matters since the EPA established its regulatory program in 1988 and prior to the inception of Colorado’s UST program in 1989. Since then, Colorado’s tank program has evolved to encompass both underground and aboveground storage tanks (ASTs) and DGS attorneys have been at the forefront of this developing program, learning the nuances of Colorado’s regulations, policies, and practices governing compliance, remediation of petroleum contaminated sites, and the intricacies of obtaining reimbursement from Colorado’s Petroleum Storage Tank Fund. Due to their extensive experience with the federal UST program and various state programs around the country, DGS attorneys have also significant national experience consulting on UST remediation projects, reimbursement applications, and compliance issues. DGS attorneys represent petroleum marketers in cases ranging from methyl tertiary butyl ether (MTBE) contamination to bad faith breach of contract and also represent a wide variety of current and former tank owners and operators, abandoned tank owners, property owners and lenders dealing with UST and AST issues.


We have years of experience working with the EPA’s Fuels Program and are well situated to manage, negotiate, and resolve enforcement proceedings and associated business issues related to conventional and reformulated fuels.  We have fostered excellent working relationships with representatives of the EPA and DGS attorneys have unique insight into agency enforcement practices and priorities.  DGS has a wealth of knowledge and experience in handling a broad array of compliance, transactional, and enforcement-related matters pertaining to fuel and fuel additive registration, specifications, production and distribution, and other operational issues. We also represent a number of large and small refineries, product terminals, and fuel retailers who are engaged in fuels production and/or distribution.

Environmental Litigation

Attorneys at DGS have litigated cases arising under each of the environmental statutes and programs identified above as well as other federal and state environmental programs.  We have brought and defended cases in Colorado and many other Western states including Arizona, California, Idaho, Montana, Nevada, New Mexico, Oregon, and Wyoming.   Environmental cases are often resolved by summary judgment motions or, where favorable to our clients, through settlement.  When our clients’ interests are best served by trial, a DGS team of lawyers and professional staff efficiently prepare and present the case to the trial court or a jury for decision.  Although several members of the DGS environmental practice group have a definite litigation-focus to their practices, DGS and its clients have often found it advantageous to staff these cases with teams consisting of lawyers from both the Environmental Law and Trial Groups. 

July 2016

Ozone Update

Of all the challenges we face in air quality planning and regulation, Ozone attainment, and implementation of the new, lowered federal standard (NAAQS) for Ozone, is perhaps the most daunting. This update features an Ozone-experienced regulator, planner, scientist, and legal counsel on the faculty.

June 2016

Cleantech & Climate Law Mixer

Join your peers and DGS attorneys for the third networking event in this series to discuss Colorado's vibrant cleantech economy, climate issues, and sustainability.

May 2016

Chambers USA Ranks DGS at the Top for Corporate/M&A and Natural Resources & Environment Practices

The 2016 edition of the Chambers USA ranked Davis Graham & Stubbs LLP first in Colorado in the areas of Corporate/M&A and Natural Resources & Environment. Chambers USA also recognized DGS for its strong Labor & Employment and Commercial Litigation practices.

Climate Change - Developments on Colorado's Horizon

Climate change considerations are taking an increasing role throughout Colorado, presenting many legal and policy challenges. This seminar will cover a spectrum of topics on emerging climate issues in Colorado - beyond the Clean Power Plan, which has received much focus.

OSHA's Updated Silica Rule

The Occupational Safety and Health Administration (OSHA) has updated its rule on employee exposure to crystalline silica. Please join us for a panel discussion of the new rule and its impacts on construction and oil and gas operations. 

Regulatory Déjà Vu: Environmental Groups Sue to Require Review of E&P Waste Rules Under RCRA

On May 4, 2016, environmental groups (Plaintiffs) sued EPA, alleging that it has failed to review and revise regulations for the disposal, storage, transportation, and handling of oil and gas (O&G) wastes as required by the Resource Conservation and Recovery Act (RCRA).See Environmental Integrity Project et al. v. EPA, No. 1:16-cv-842 (D.D.C. May 4, 2016).

Privilege and the Lawyer-Consultant Relationship

Colorado Environmental Management Society

Privilege and the Lawyer-Consultant Relationship: Why Environmental Lawyers and Consultants Need Each Other (and Why Clients Need Us Too)


April 2016

DGS Earns Certifiably Green Denver Designation

DGS Earns Certifiably Green Denver Designation

Davis Graham & Stubbs LLP received certification from the Denver Department of Environmental Health's Certifiably Green Denver program, which helps businesses find opportunities to improve efficiency and profitability while minimizing their environmental footprint.

U.S. Forest Service Developing Policies Addressing Mitigation on National Forests and Grasslands

The U.S. Forest Service is developing national policy to address mitigation of adverse impacts in National Forests and Grasslands and is seeking public input on this policy.  

EPA Region 8

Air Quality Committee Newsletter

Co-Authors: Brenna Finn and Chelsea Grossi


Governor Bullock Signs Executive Order Creating Interim Montana Clean Power Plan Advisory Council and Announces 27 Council Members. 


March 2016

The New BLM Proposed Rules for Venting & Flaring

Please join our panel for a discussion of BLM's proposed rule and what it might mean for your company. Topics will include putting the rule into context, analysis of key provisions of the proposed rule, discussion of how the rule may impact your operations, and initial thoughts about areas to focus on during public comment.

Planning For Problems: BLM Issues Proposed Revisions to Resource Management Planning Regulations

On February 25, 2016, the Bureau of Land Management (BLM) published proposed revisions to its resource management planning regulations, last revised in 2005. The proposed revisions fundamentally shift the land use management planning process from more local resource management planning to a sweeping landscape-scale approach that may make more difficult the analysis and consideration of local conditions, issues, and impacts. 

Whole Lotta Shakin' Goin' On - Recent Developments Concerning Induced Earthquakes

States are adopting new regulatory requirements to address seismic concerns, and last month the Sierra Club filed a first-of-its-kind RCRA lawsuit over this issue. Please join us for a discussion of these developments.

January 2016

COGCC Adopts Rules Implementing Task Force Recommendations No. 17 and 20

On January 25, 2016, the Colorado Oil and Gas Conservation Commission ("COGCC" or "Commission") approved rules for coordinating the work of the COGCC with local jurisdictions when large scale oil and gas facilities are proposed near communities and for facilitating municipal planning. These rules stem from Recommendations No. 17 and 20 of Governor Hickenlooper's Oil and Gas Task Force and will become effective 20 days after they are published in the Colorado Register.


BLM Issues Venting, Flaring, and Leaking Rule – And a Jurisdictional Challenge May Be Brewing

Today, the Department of Interior (DOI)/Bureau of Land Management (BLM) issued its much-anticipated proposed rule on venting, flaring, and leaking from oil and gas operations on onshore federal and Indian leases, along with a four-page fact sheet. DOI's press release, which discusses the proposal largely in terms of air quality, notes that the rule will "help curb waste of our nation's natural gas supplies, reduce harmful methane emissions and provide a fair return on public resources for federal taxpayers, Tribes, and States." DOI is proposing to update NTL-4A by requiring operators to limit venting and flaring through new technologies, processes, and equipment including storage tanks, adopt leak detection and repair programs, and limit gas losses during liquids unloading. The proposed rule would also prohibit venting, except during emergencies and other limited exceptions–effectively implementing a "no venting" standard. Finally, the rule proposes to clarify when operators owe royalties on flared gas and allow BLM to set royalty rates at or above 12.5 percent of the value of production.

EPA Launches New Environmental Audit Policy eDisclosure Portal with Important Implications for Environmental Self Audits

On December 9, 2015, EPA announced important changes to its environmental audit policy and voluntary disclosure program with the launch of its new eDisclosure portal (eDisclosure Notice) intended to streamline the disclosure process. 

November 2015

EPA's New Rule on "Waters of the U.S." Regulated Under the Clean Water Act

Boulder County Bar Association

Co-Authors: Noah Greenburg and Mave Gasaway

October 2015

What's New Under the Sun?

Join us for a discussion on solar energy developments and trends in Colorado. Topics will include Colorado PUC proceedings critical to solar and state efforts to advance solar.

Two Part Environmental Enforcement Series

Part Two: Environmental Self-Audits and Self-Disclosure

Environmental self-audits are an effective tool to detect and correct potential non-compliance with environmental laws. In addition, EPA's Audit Policy and various state environmental audit privilege and immunity laws provide incentives for self-disclosure of non-compliance subject to certain eligibility criteria.

September 2015

Transferring Insurance Benefits in Corporate Transactions May Have Just Gotten a Little Easier, but It's Still a Tricky Task

Imagine you are general counsel explaining to your management that the insurance benefits you thought the other party to a corporate transaction had assigned to your company to cover assumed liabilities are not actually available. 

DGS Client Alert Update: New Clean Water Rule Stayed in Colorado and 12 Other States

Rule Now Effective In All Other States, But Legal Challenges Loom Nationwide

As discussed in a previous DGS alert, on May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued the new Clean Water Rule (Rule) defining the extent of jurisdictional "Waters of the United States" regulated under the Clean Water Act (CWA). 

August 2015

Third Time's a Charm? EPA's Proposed Rule for CAA Source Determinations in the Oil Patch

On Tuesday, August 18, 2015, with much fanfare, EPA released pre-publication versions of several proposed rules affecting air quality permitting and regulation of sources in the oil and gas sector. While EPA's promised "methane rules" and proposed Control Technique Guidelines (CTG's) for state emissions control requirements for oil and gas sources may have grabbed the spotlight for being completely new and different among the proposals released, also included was EPA's proposed rule for making Clean Air Act (CAA) source determinations in the onshore oil and gas sector.

Two-Part Environmental Enforcement Series

Part One: EPA Information Request Letters - Practical Tips and Guidance for Responding in Today's Enforcement Climate

Most environmental statutes provide EPA with broad information gathering authority to examine a company's compliance with applicable environmental laws or waste-related practices.  One of the ways in which EPA exercises this authority is via the Information Request letter, which may be a prelude to formal enforcement or administrative action.

July 2015

Waters of the U.S.

Please join Davis Graham & Stubbs for a discussion of EPA's and the U.S. Army Corps of Engineer's recently finalized jurisdictional Waters of the U.S. rule, related Clean Water Act issues, and what it all means for your business. Topics will include a discussion of the new jurisdictional Waters of the U.S. rule, including the new definition of tributary, adjacent waters, significant nexus, and new exclusions among others.

Colorado Proposes Revised 8-Hour Ozone Standard Implementation Schedule; Denver Metro Designation Likely to “Bump Up” from Marginal to Moderate Attainment Come January 2016

American Bar Association Section of Environment, Energy, and Resources Air Quality Committee Newsletter

EPA issued its proposed rule to the 8-hour ozone NAAQs on December 17, 2014, indicating that it may lower the allowable levels of ozone to a range between .065 and .070 ppm; this is a significant tightening of the standard from the current level of .075 ppm. The final rule is expected in October 2015.


EPA's New Clean Water Rule and Unique Concerns for Western Operators

On May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued a pre-publication final rule defining the jurisdictional "Waters of the United States" regulated under the Clean Water Act (CWA). Unless blocked by some federal legislation or court order, the final rule will go into effect 60 days after publication in the Federal Register. That effective date will likely be around mid-August.

Clearing the Waters: EPA Finds No Systemic Impacts to Drinking Water from Hydraulic Fracturing Activities

Clearing the Waters: EPA Finds No Systemic Impacts to Drinking Water from Hydraulic Fracturing Activities

On June 4, 2015, the U.S. Environmental Protection Agency (EPA) published a draft study report entitled Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, which analyzes the relationship between hydraulic fracturing and drinking water.

May 2015

Chambers USA Ranks DGS Among Top Corporate/M&A and Natural Resources & Environment Practices

The 2015 edition of the Chambers USA ranked Davis Graham & Stubbs LLP first in Colorado in the areas of Corporate/M&A and Natural Resources & Environment. Chambers USA also recognized DGS for its strong Labor & Employment and Commercial Litigation practices.

Keeping the Gate Redux: More Valuation Methodologies Come Under Fire in Property Value Diminution Cases

Bloomberg BNA Toxics Law Reporter

Co-Authors: Louis Wilde, Jack Williamson, and Gail Wurtzler

In 2009, one of the authors of this paper published a detailed review of cases in which the opinions of expert witnesses regarding the diminution in value of properties due to contamination or proximity to contamination were excluded. The present paper provides an update regarding new excluded opinions since Wilde (2009) was written.


April 2015

Three Revisions to EPA's CERCLA Model Settlement Documents Every PRP Should Know About

Last Fall, EPA published revisions to its 2009 guidance on EPA's model agreements for settlements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), entitled Revisions to 2009 ARC Memo and Issuance of Revised CERCLA Past Cost, Peripheral, De Minimis, De Micromis, and Municipal Solid Waste Settlement Models (the Guidance).

March 2015

The Federal Government Joins the Fray: The BLM's Final Hydraulic Fracturing Rules

On March 20, 2015, the Bureau of Land Management (BLM) issued its final rules for hydraulic fracturing on federal and tribal lands (Final Rules). The Final Rules govern approximately 700 million subsurface acres overseen by the BLM, and they culminate a rulemaking process that began in November 2010.

Air Quality Summit

It's hard to deny that air quality regulations are one of the most important government initiatives impacting business and industry today. To help understand what the latest and likely future air quality requirements will look like, we have assembled three panels consisting of some of the leading federal and state regulators, as well as several industry and air quality planning experts, to provide their perspectives.

January 2015

Brownfields Development Seminar Series: Part III

Please join us for our third breakfast seminar covering hot topics in brownfields development hosted by the DGS Environmental and Real Estate Groups.

Colorado Oil and Gas Conservation Commission Adopts Changes to Enforcement and Penalty Rules

On January 5, 2015, the Colorado Oil and Gas Conservation Commission (COGCC) amended Rules 522 and 523 governing enforcement and penalties. These amendments implement House Bill 14-1356, which the legislature adopted last April.

Proposed Regional Haze Settlement

American Bar Association Section of Environment, Energy, and Resources Air Quality Committee Newsletter

On August 14, 2014, EPA issued notice of a proposed settlement agreement between environmental groups, including WildEarth Guardians (collectively, the petitioners), and EPA, in the course of pending litigation in the Tenth Circuit.


High Risk, Questionable Reward

On July 31, 2014, the U.S. Environmental Protection Agency (EPA) published a request for information (RFI) on various changes to the Risk Management Program (RMP) under Section 112(r)(7) of the Clean Air Act, including completely replacing the current RMP rule and its sister regulation, the Process Safety Management (PSM) standard, with a new framework for regulating high-risk industries. The comment period associated with the RFI closed on October 29, 2014. EPA has published over 570 comments submitted by industry members, state and local agencies, public citizens, and non-governmental organizations in response to the RFI. This Client Alert analyzes the bulk of those comments for common themes that illustrate anticipated areas for programmatic revision. It further identifies certain ideological conflicts which must be resolved before any final rule can issue with broad-based support.

RFI Background

In response to Executive Order 13650, entitled "Improving Chemical Facility Safety and Security," was issued August 1, 2013 in response to several recent major chemical accidents, including the explosion at the West Fertilizer Facility in West, Texas. The Executive Order required numerous federal agencies to form a Chemical Facility Safety and Security Working Group (Working Group) to identify how to reduce the incidence of major chemical incidents at chemical facilities. On May 1, 2014, the Working Group issued its report to the President recommending a number of initiatives, including modernizing the RMP and PSM standards by May 1, 2015. EPA and the Occupational Safety and Health Administration (OSHA) both issued RFIs intended to assist in determining whether and how to modernize the RMP and PSM standards. Following-up on publication of the Working Group's report and OSHA's RFI, which signals that OSHA may apply an expanded PSM program to ammonium nitrate, reactive chemicals, and oil and gas drilling, servicing, and production facilities, EPA published its own RFI intended to improve and/or expand its RMP rule.


Brownfields Development Seminar Series: Part II

Please join us on December 2 for the second of three breakfast seminars on hot topics in brownfields development hosted by the DGS Environmental and Real Estate Groups.

November 2014

Let's Talk Turkey About EPA's Proposed Lower Ozone Standards

Today, EPA issued its long-awaited new National Ambient Air Quality Standard (NAAQS) proposal for ground level ozone, the federal health-based standard that states must decide how to meet. The new primary 8-hour ozone NAAQS, which EPA is proposing to set at between 65 and 70 parts per billion (ppb), represents a significant tightening of the standard from the current level of 75 ppb and would put a significant portion of the country in non-attainment. The agency is also taking comment on setting the primary NAAQS as low as 60 ppb, which could drastically expand non-attainment designations even further. The agency has also proposed tightening the secondary ozone standard, which exists to protect “public welfare” (as opposed to public health) values such as soils, water, crops, wildlife, weather, economic values, visibility and climate, and personal well-being.

Today’s proposal marks yet another substantial federal air quality action by EPA in a year that has seen, perhaps, as many significant air quality rules or court decisions as any on record. These include the U.S. Supreme Court’s validation of EPA’s Cross State Air Pollution Rule (CSPR), the Court’s ruling on the extent of EPA’s authority to regulate CO2 from stationary sources in the Utility Air Regulatory Group case, EPA’s proposed Clean Power Plan focusing on CO2 reductions from coal-fired power plants, the proposed reversal of EPA’s policy on affirmative defenses for startups, shutdowns, and malfunctions; and the Supreme Court’s recent acceptance of certiorari to review the legality of the Mercury Air Toxics Standard (MATS). Of these, it is perhaps the ozone NAAQS that poses the most serious and important consequences for businesses as well as state regulators, and even the EPA itself. A further lowering of the ozone NAAQS (it was last lowered in 2008) will significantly impact nearly every industrial sector, necessitating, in our view, widespread participation in EPA’s notice and comment process. Comments will be due 90 days after publication of the proposal in the Federal Register; although, given the significance and breadth of the rule’s potential impacts, it is possible the comment deadline will be extended. A final rule is expected by October, 2015.


DGS Ranks Among Best Law Firms

Davis Graham & Stubbs LLP was named among the 2014-2015 “Best Law Firms” by publisher Woodward/White, Inc. in their fifth edition, which published today. U.S. News and Best Lawyers® have joined forces to position more than 11,000 firms in 87 practice areas based in 178 metropolitan areas and eight states. Firms were ranked across three tiers both locally and nationally based on quantitative and qualitative data gathered from peer and client feedback.

October 2014

A Review of Significant Air Quality Litigation

Rocky Mountain States Section Air & Waste Management Association Air Quality Conference

EPA Amends Its All Appropriate Inquiries Rule and Confirms the Standard for Environmental Site Assessments

On October 6, 2014, EPA issued a final rule updating its All Appropriate Inquiries (AAI) Rule to remove the previous reference to the outdated 2005 ASTM International (ASTM) Standard Practice for Phase I Environmental Site Assessments and replace it with a sole reference to the 2013 Standard, ASTM E1527-13. As discussed in our client alert of November 11, 2013, doubt existed for almost a year because, without express direction from EPA, prospective purchasers and others conducting site assessments were forced to choose between relying on the outdated 2005 version of the ASTM Standard, which was referenced in EPA’s existing AAI Rule, or relying on the revised, November 2013 Standard, despite its not being named in the AAI Rule, because it was more recent and more stringent.

Although no other substantive changes were made to the AAI Rule, parties conducting site assessments should be mindful of certain critical aspects and impacts of the final rule:

First, the new final rule is not effective until a year from now, October 6, 2015. After that date, compliance with the 2013 Standard, but not the 2005 Standard, will satisfy the AAI test at 40 C.F.R. Part 312, which allows prospective purchasers to qualify for liability protection under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for contamination found on a property during a Phase I site assessment.


September 2014

Mission Creep: EPA Further Narrows its Start-Up, Shut-Down, and Malfunction Policy

On September 17, 2014, EPA further revised its policy regarding start-up, shut-down, and malfunction (SSM) events, issuing a Supplemental Notice of Proposed Rulemaking (SNPR) that would remove the availability of an affirmative defense for air emission exceedances resulting from malfunction events.

DOT Proposes Series of Rules Targeting Rail Transport of Crude Oil and Ethanol, Citing Increased Traffic and Recent High-Profile Accidents

The Department of Transportation (DOT), through the Pipeline and Hazardous Materials Safety Administration (PHMSA) and Federal Railroad Administration (FRA), has recently proposed a series of rules as part of its comprehensive effort to strengthen safety standards for rail transport of crude oil and ethanol, as well as other flammable liquids.

August 2014

EPA Actions on GHG Permitting Following the UARG Decision

As discussed in our client alert of June 24, 2014, the U.S. Supreme Court in Utility Air Regulatory Group v. EPA (UARG) invalidated EPA’s greenhouse-gas (GHG) regulations to the extent those regulations required stationary sources to obtain Prevention of Significant Deterioration (PSD) and/or Title V major source permits based solely on the source’s GHG emissions (termed "non-anyway" sources). On July 24, 2014, EPA issued a memorandum to the regional administrators outlining several next steps following the UARG decision.

Real Estate Markets Are Informationally Efficient: Evidence from Buyer and Agent/Broker Surveys

Environmental Claims Journal

Co-Authors: Louis Wilde, Gail Wurtzler & Jack Williamson

July 2014

Environmental Restoration Damages: A New Trend of Regulating Cleanups Through Private Lawsuites

60th Annual Rocky Mountain Mineral Law Institute

Environmental restoration damages, which have their roots in the common law, allow an injured property owner to elect to recover the cost of repairing damaged property rather than the amount the property diminished in market value as a result of the harm. The longstanding commonlaw rule, however, is that damages based on the cost of repairing property cannot exceed the diminished value of the property.


Connie Rogers Joins Center of the American West Board

DGS partner Connie Rogers today begins her term on the Board of Directors of the Center of the American West at the University of Colorado. Founded in 1986, the Center serves as a forum committed to the civil, respectful, and problem-solving exploration of important and often contentious public concerns. The center has published numerous books, articles, and films addressing western issues such as energy, water, and conservation.

June 2014

COGCC Shuts Down Wastewater Injection Site in Response to Small Earthquakes - How This Could Impact Colorado Operators

This past Tuesday – June 24, 2014 – the Colorado Oil and Gas Conservation Commission (COGCC) issued a press release, explaining that it had ordered High Sierra Water Services to temporarily cease operating a 10,000 barrel-per-day injection well in Weld County. The COGCC described the order as “a precautionary step” that would enable the agency to analyze whether well operations are tied to recent low-level seismic activity nearby.

The Supreme Court "Tailors" EPA's GHG Permitting Program

Yesterday, Justice Scalia, writing for a majority of the United States Supreme Court, invalidated EPA's greenhouse-gas (GHG) regulations to the extent they require stationary sources to obtain a Prevention of Significant Deterioration (PSD) and/or Title V major source permit based solely on the source's GHG emissions. The Court, however, also validated EPA's extension of "best available control technology" (BACT) requirements to GHG emissions at sources already subject to PSD requirements based on criteria pollutant emissions (so-called "PSD-anyway" sources).

May 2014

Hydraulic Fracturing: Recent Trends & Updates

Please join us for this seminar discussing the recent trends and legal updates surrounding hydraulic fracturing. Our guest speaker, Mike Paque, Executive Director of the Ground Water Protection Council, will address the recent report from the Secretary of Energy Advisory Board, FracFocus 2.0 Task Force.

Chambers USA Ranks DGS at the Top Corporate/M&A and Natural Resources & Environment Practices

The 2014 edition of the Chambers USA ranked Davis Graham & Stubbs LLP first in Colorado in the areas of Corporate/M&A and Natural Resources & Environment. Chambers USA also recognized DGS for its strong Labor & Employment and Commercial Litigation practices.

Legislative Review: How Will the 2014 Legislative Session Impact Colorado's Energy Industry?

It was another busy and productive state legislative session for the energy industry and business community. Please join us on May 23 for a discussion on how legislation passed during the 2014 session could impact Colorado's overall energy and cleantech sector, and what opportunities are presented to build on these initiatives in the future.

The Devil's in the Details: EPA's Advance Notice of Proposed Rulemaking on Hydraulic Fracturing Disclosure

On May 9, 2014, the U.S. EPA issued a pre-publication copy of an Advance Notice of Proposed Rulemaking (ANPR) requesting public comment on regulatory and voluntary mechanisms for obtaining information on chemical substances and mixtures used in hydraulic fracturing (HF) operations.

Enforcement Issues Relating to Air & Water Resources

Please join us for the second of our enforcement seminars on current issues affecting air and water resources. In this session, our speakers will cover air enforcement trends and developments in Colorado and EPA Region 8 as well as wetland issues including enforcement under section 404 of the Clean Water Act.

March 2014

Troubled Waters Ahead! New Proposed Rule Defines Areas Regulated by Clean Water Act

On March 25, 2014, EPA and the Army Corps of Engineers issued a pre-publication release of the much-anticipated proposed rule to define the jurisdictional "Waters of the United States" that are regulated under the Clean Water Act (CWA). The proposed rule is aimed at providing clarity and certainty to "jurisdictional water" determinations in the wake of the uncertainty resulting from the 2006 U.S. Supreme Court ruling in Rapanos v. U.S.

Enforcement Issues Facing the Oil and Gas Industry

Please join us for two seminars on current enforcement issues affecting oil and gas operators in Colorado. Our first panel, on April 17, will begin by discussing recent changes to the Colorado Oil and Gas Conservation Commission's (COGCC) enforcement program including changes to the notice of alleged violation (NOAV) process and certain new templates, tools, and procedures.

New Fund Available for the Investigation and Cleanup of Petroleum-Impacted Properties

Effective January 31, 2014, the Colorado Division of Oil and Public Safety (Division) promulgated regulations implementing Colorado Revised Statute § 8-20.5-103(9) which established the new Petroleum Cleanup and Redevelopment Fund (Fund). The Fund was created using money the State received in settlement of certain claims related to the Petroleum Storage Tank Fund.

EPA to Hold Public Hearing in Denver on Proposed General Permits and Permits by Rule for Minor Source NSR Permitting in Indian Country

On March 12, 2014, the Environmental Protection Agency (EPA) will hold a public hearing in Denver, Colorado on the proposed "General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country," which the agency initially released on December 12, 2013, and published in the Federal Register on January 14, 2014 (79 Fed. Reg. 2546).

New Colorado Policy for Conditional Closure of “Low-Threat” Sites with Groundwater Contamination – A Long-Awaited Exit From Remediation Limbo?

On January 8, 2014, the Colorado Department of Public Health and Environment’s (CDPHE) Hazardous Materials and Waste Management Division published a new policy which provides a roadmap for closing "low-threat" sites where groundwater contamination concentrations exceed Colorado’s groundwater standards.

Colorado's Greenhouse Gas Inventory Update: A Work in Progress

On December 11, 2013, the Colorado Department of Public Health (CDPHE) issued its Draft Colorado Greenhouse Gas Inventory – 2013 Update (the GHG Update); a report required every five years. The GHG Update summarizes all of Colorado's GHG emissions and sinks from 1990 to 2030. To generate the GHG Update, CDPHE used the Environmental Protection Agency's (EPA's) model for assigning emission factors and making emission projections.

50-State Survey of Protections Available for Purchasers of Contaminated Property

Environmental Litigation Committee of the American Bar Association

Co-Authors: Gail L. Wurtzler and Brenna Finn (Colorado, Wyoming, North Dakota, New Mexico, Nevada, and Montana chapters)

The Subcommittee of Women Environmental Litigators, one of the groups under the umbrella of the American Bar Association Litigation Section’s Environmental Litigation Committee, initiated this 50-state survey to address a question that our members identified as one that frequently arises for environmental litigators and other attorneys who work on projects involving contaminated properties. The question we posed to each of the authors was: describe any statutory or regulatory provisions that your State has which are similar, or have a similar purpose, to the innocent landowner and/or bona fide purchaser protections found in CERCLA.


December 2013

The Winds of Climate Change are Blowing

The winds of legal, regulatory, and policy responses to climate change are blowing perhaps more than ever before. The consequences for all stakeholders, and particularly those companies operating in the energy sector, are significant.

November 2013

The New ASTM Standard — A Catch-22 for Property Transactions Needing a Phase I Site Assessment

On November 6, 2013, ASTM International (“ASTM”) issued its revised Standard Practice for Phase I Environmental Site Assessments (“Phase I site assessments”) or “audits,” used in most commercial property transactions. While the new standard is generally a good development, it has created a true catch-22 for prospective purchasers. 

October 2013

Where There's Smoke There's Fire? – How it Just Got Harder for Colorado Oil and Gas Operators to Meet Air Emissions Requirements

The Air Pollution Control Division has again revised its P.S. Memo 10-02: "Oil & Gas Atmospheric Condensate Storage Tank Batteries System Reporting Guidance" to make several significant changes regarding reportable air emissions under Air Quality Control Commission Regulation No. 7, § XII.

Rebuilding After the Colorado Floods – Complying With Clean Water Act § 404

The recent devastating floods in Colorado have created significant challenges for a wide variety of companies. In the aftermath, affected businesses must quickly make important decisions related to response activities that may be subject to a variety of regulatory programs, including Section 404 of the Clean Water Act. 

September 2013

Hydraulic Fracturing & Air Emissions Seminar

Please join us for this seminar that will focus on recent air emission studies and issues related to oil and gas operations. As concerns over increased oil and gas activity using hydraulic fracturing continue to mount, significant efforts and focus have turned to air emissions - both from oil and gas operations generally, and hydraulic fracturing specifically. In this session, our speakers, who have been and are involved in the forefront of these issues, will present an overview of completed and ongoing studies regarding the impact of airborne emissions associated with oil and gas operations.

August 2013

Transport of Hazardous Waste

ABA RCRA Practice Manual

This manual clearly explains this dynamic law, its background, regulatory structure and procedures, and the implications RCRA has for your client or company. Chapters are written by an impressive roster of environmental lawyers who practice extensively in this area, and the authors offer practical suggestions and guidance to minimize the risk of penalty and to soften the blow when liability cannot be avoided.


May 2013

Tools for Water Management Planning and Regulatory Compliance in Oil and Gas Well Development

Please join us for the first session of a two-part series on Hydraulic Fracturing Water Resources and Management. Water, as a critical component in oil and gas development, can at times become a limiting factor that can impact production and new development. Managing the large volumes of waste water produced during hydraulic fracturing operations presents a myriad of logistical and regulatory challenges.

April 2013

Shale Gas Development “Need Not Cost Environment”

viEUws - The EU Policy Broadcaster

Leading environment journalist, Sonja van Renssen, is joined by David Neslin, former director of the Colorado Oil & Gas Conservation Commission (the government agency that regulates all oil and gas development in the state of Colorado), to discuss Shale Gas Development.

March 2013

Colorado Considering Significant Revisions to Emission Control, Permitting, and Reporting Requirements for the Oil and Gas Industry

At the February 28, 2013 Stakeholder Meeting, the Colorado Air Pollution Control Division (Division) revealed a suite of revisions it is considering to Air Quality Control Commission Regulation No. 7, in the form of significant new and expanded control options for Volatile Organic Compounds (VOCs), Greenhouse Gases (GHGs), and other hydrocarbon emissions from oil and gas facilities. The Division anticipates a formal rulemaking process to begin in November, 2013. 

EPA Proposes Significant Changes to its Startup, Shutdown, and Malfunction Air Rules

On February 22, 2013, the United States Environmental Protection Agency (EPA) issued a sweeping proposal regarding the treatment of excess emissions in state rules from sources during periods of startup, shutdown, and malfunction (SSM). The proposal responds to a petition for rulemaking filed in 2011 by the Sierra Club, and promises to fundamentally alter the way most states, including Colorado and North Dakota, treat SSM events in their State Implementation Plans (SIP). Comments on EPA’s proposal are currently due March 25, 2013. 

February 2013

Developments and Trends in Clean Air Act Source "Aggregation"

Rocky Mountain Mineral Law Foundation Special Institute: Air Quality Issues Affecting Oil, Gas, and Mining Development in the West

Operating in a World of Nonattainment: National Ambient Air Quality Standards and Implications for Energy Development

Rocky Mountain Mineral Law Foundation Special Institute: Air Quality Issues Affecting Oil, Gas, and Mining Development in the West

October 2012

Navigable Waters - Significant Nexus Test in the O&G Industry

Fourth Quarter 2012 Rocky Mountain Environmental, Health and Safety Peer Group Meeting

COGCC’s “Setback” Rulemaking Means More Regulation for the Oil and Gas Industry

The Colorado Oil and Gas Conservation Commission (COGCC) has embarked on a significant new rulemaking that promises to have big impacts on oil and gas operations in Colorado. On September 21, 2012, the COGCC rolled out a conceptual outline of potential amendments to the existing COGCC setback rules, and on October 1, the Commission gave the go ahead to begin a rulemaking to amend the setback rules. Proposed rules were published October 15.

Air Quality Impacts of Shale Development

Proof of Causation in the Courts vs. Proving a Negative in the Court of Public Opinion

This two-part Davis Graham & Stubbs LLP breakfast briefing series in September and October will focus on the cutting edge of environmental controversy surrounding shale development for oil and gas production, addressing a number of significant developments in the courts and across the country regarding air quality impacts from shale development involving hydrofracturing or "fracking."

September 2012

DGS Attorney Dean Miller to Speak at CHWMS Regional Conference

DGS attorney Dean Miller is speaking at the Colorado Hazardous Waste Management Society (CHWMS) Regional Mining Conference. The event, being held October 9 in downtown Denver, will focus on recent and significant topics and projects related to the Rocky Mountain Region from a variety of government, industry, and advocacy groups. 

DGS Partner John Jacus to Speak at ABA SEER Fall Meeting

Davis Graham & Stubbs LLP partner John Jacus is serving on the planning committee and as a panel moderator for the American Bar Association (ABA) Section of Environment, Energy, and Resources (SEER) Fall Meeting.  

Sixth Circuit Strikes Down EPA's Clean Air Act Source Aggregation Approach

In a 2-1 opinion issued August 7, 2012, in the case of Summit Petroleum Corp v. EPA, No. 10-4572, slip op. (6th Cir. Aug. 7, 2012), the Sixth Circuit appears to have struck a substantial blow to the U.S.Environmental Protection Agency's ("EPA" or "the Agency") approach to single source aggregation under the Clean Air Act ("CAA").

July 2012

Federal Clean Water Act Jurisdiction After Sackett

When one door closes, another door opens – or so the saying goes. Earlier this year, the U.S. Supreme Court closed the door on the question of whether compliance orders issued by the U.S. Environmental Protection Agency (EPA) under Section 309 of the Clean Water Act (CWA) are "final agency action" under the Administrative Procedure Act (APA) subject to pre-enforcement judicial review.

EPA Finalizes Clean Air Act New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Applicable to the Oil and Gas Industry

On April 17, 2012, EPA finalized its heavily anticipated revisions to the NSPS and NESHAP applicable to oil and gas production facilities (i.e., upstream and processing). The final rule revises existing requirements (primarily applicable to gas processing facilities) and also imposes new requirements to address emissions for several processes and pieces of equipment used in the oil and gas industry that have not previously been subject to federal air quality regulation, including (1) well completions at newly hydraulically fractured natural gas wells and at existing wells that are refractured; (2) compressors; (3) pneumatic controllers; and (4) condensate and crude oil storage tanks.  As of the date of this update, the final rules have not yet been published in the Federal Register. 


EPA Finalizes Ozone Designations Under the 2008 Ozone National Ambient Air Quality Standard

In April 2012, EPA issued its final ozone area designations for the 2008 primary eight-hour ozone standard of 0.075 ppm.


Local Colorado Governments' Focus on Air Quality Impacts from Oil and Gas Operations

Many local communities in Colorado have imposed temporary moratoriums banning hydraulic fracturing until the locality can develop new and revised regulations addressing environmental impacts, including air quality impacts, associated with hydraulic fracturing.  For example, the City of Longmont and Boulder County have instituted moratoriums on new oil and gas drilling to provide additional time to develop new and revised oil and gas regulations that will address, at least partly, air emissions from oil and gas operations, including hydraulic fracturing.  It is generally accepted in Colorado that localities cannot ban oil and gas operations altogether, but the extent to which localities can regulate environmental impacts associated with oil and gas operations is less certain. 


June 2012

Chambers USA Ranks DGS at the Top for Corporate/M&A and Natural Resources & Environment Practices

Chambers USA

The 2012 edition of the Chambers USA ranked Davis Graham & Stubbs LLP first in Colorado in the areas of Corporate/M&A and Natural Resources & Environment. Chambers USA also recognized DGS for its strong Commercial Litigation and Labor & Employment practices.


Environmental Impact of Oil and Gas Production

State Bar of Texas and Texas Tech University School of Law

November 2011

DGS Partners to Speak at Legal, Regulatory and Environmental Challenges of Hydraulic Fracturing Summit

Davis Graham & Stubbs LLP Partners Jeff Pilkington and Gail Wurtzler will be speaking at the Legal, Regulatory and Environmental Challenges of Hydraulic Fracturing Summit, which is presented by Information Forecast, Inc., on December 7‐8th at the Marriott West Loop in Houston, Texas.  


Zach C. Miller is Inducted as a Fellow in the American College of Environmental Lawyers

Davis Graham & Stubbs LLP Partner Zach C. Miller was recently inducted as a Fellow into the American College of Environmental Lawyers.  The invitation-only membership is for lawyers who are preeminent in their field and who have practiced environmental law for at least 15 years, with at least 50 percent of their focus on environmental law in the last five years. 


DGS Partners to Speak at the RMMLF Hydraulic Fracturing: Core Issues and Trends Workshop

Davis Graham & Stubbs LLP Partners Adam Cohen and Shannon Stevenson will be co-speaking at the Hydraulic Fracturing: Core Issues and Trends Workshop, which is presented by the Rocky Mountain Mineral Law Foundation, on November 17th at the Grand Hyatt in Denver, Colorado.


October 2011

DGS Partner John R. Jacus Speaks at 36th Kentucky Mineral Law Conference

Davis Graham & Stubbs LLP Partner John R. Jacus will be co-speaking on a panel at the 36th Kentucky Mineral Law Conference, which is presented by the Energy & Mineral Law Foundation, on October 19th through the 21st at the Marriott Griffin Gate Resort in Lexington, Kentucky.  


DGS Partner Constance L. Rogers Speaks at State of the Union: Current Environmental Issues, Regulatory Programs, and Industry Perspectives Conference

Davis Graham & Stubbs LLP Partner Constance L. Rogers will be speaking at the State of the Union: Current Environmental Issues, Regulatory Programs, and Industry Perspectives Conference, which is presented by the Colorado Hazardous Waste Management Society, Inc. (CHWMS), on Tuesday, October 11th, at the Colorado Convention Center in Denver, Colorado.  


Under Extraordinary Circumstance: NEPA Practice Post-Deepwater Horizon

Natural Resources & Environment

In March 2009, the Mineral Management Service (MMS), now Bureau of Ocean Energy, Management and Regulation (BOEMRE), approved BP Exploration, Inc.'s (BP) Mississippi Canyon Block 252 Amended Exploration Plan. The plan included the ill-fated Macondo well that blew on April 20, 2010, causing the deaths of 11 men, severe injuries to 17 others, and the sinking of the $350 million Deepwater Horizon mobile offshore drilling unit...


September 2011

Air Quality Constraints on Shale Development Activities

Institute for Energy Law – Center for American and International Law - Second Conference on the Law of Shale Plays

This paper examines the typical sources of air pollutants from various items of equipment and activities common to shale gas and oil production, the current and likely future air quality regulations affecting the operation of these sources and activities, and recent regulatory and administrative developments of particular concern to those involved in shale gas and oil development.  

Presentation Materials  |  Paper

August 2011

DGS Attorney John R. Jacus Speaks at 2nd Conference on the Law of Shale Plays

Davis Graham & Stubbs LLP announces that John R. Jacus will be speaking at the 2nd Conference on the Law of Shale Plays, which is presented by The Institute for Energy Law, on September 7-8th at the Worthington Renaissance Hotel in Fort Worth, Texas.  Mr. Jacus’ discussion will focus on “Air Quality Constraints on Shale Development Activities.” 


DGS Attorneys John Jacus and Bob Lawrence Recognized by International Who's Who of Environmental Lawyers

Davis Graham & Stubbs LLP announces John R. Jacus and Robert W. Lawrence have been named among the International Who's Who of Environmental Lawyers.  "Since 1996, Who's Who Legal has identified the foremost legal practitioners in 31 areas of business law," according to publisher Law Business Research Ltd.  "We feature over 10,000 of the world's leading lawyers in over 100 countries."


July 2011

Emerging Issues Under the RCRA Bevill Exclusion: The Bevill is in the Details

57th Annual Rocky Mountain Mineral Law Institute

Navigating the intricacies of RCRA’s Bevill Amendment has been a challenge for even the most experienced environmental practitioners for more than twenty years.  There are many traps for the unwary given the complexity of both the mineral beneficiation and processing operations that seek the protection of the Bevill exclusion and the applicable RCRA regulations.


EPA's New Rules for Clean Air Act Permitting in Indian Country

On July 1, 2011, the EPA's new Federal Implementation Plan (FIP) imposing air quality permitting requirements for stationary sources in Indian Country was published in the Federal Register. 76 Fed. Reg. 38748, 38770 (July 1, 2011). The FIP includes two New Source Review regulations applicable to the following stationary sources in Indian Country: (1) new and modified minor sources and minor modifications at existing major sources (Minor NSR Rule); and (2) new and modified major sources in portions of Indian Country designated as nonattainment (Nonattainment Major NSR Rule).


May 2011

EPA and Army Corps of Engineers Issue Proposed New Rapanos Guidance and Announce Follow-Up Rulemaking

After much controversy and pressure from members of Congress and stakeholders, EPA and the Army Corps of Engineers have formally released their proposed "EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act."  The Proposed Guidance substantially increases the number of waters that will be subject to jurisdiction under the Clean Water Act.


April 2011

MACT Regulations - Updates and Implications

Come Up for Air - In the Mile High City: Air Workshop

December 2010

U.S. EPA Issues Final Rule For Mandatory Reporting of Greenhouse Gases for the Upstream Oil and Natural Gas and Carbon Sequestration Industries

The EPA is operating on an expedited timetable, requiring applicable industries to begin collecting data on January 1, 2011, and begin submitting the first round of reports to the EPA by March 31, 2012. On November 9, 2010, the U.S. Environmental Protection Agency (EPA) issued final regulations requiring the annual reporting of greenhouse gas (GHG) emissions from qualifying facilities in the upstream oil and natural gas sector, including onshore production.


August 2010

Davis Graham & Stubbs Attorneys Top “Best Lawyers” List in Colorado

The newly announced, 2011 edition of the Best Lawyers in America ranks Davis Graham & Stubbs LLP first in Colorado-based law practices for corporate governance and compliance law, environmental law, mergers and acquisitions law, natural resources law, oil and gas law and securities law. This year Best Lawyers recognizes 36 DGS attorneys, including 13 who have been named to the list for at least 10 years. Nearly half (46 percent) of DGS partners are recognized in the definitive guide to legal excellence, in addition to several attorneys of counsel to the firm. Best Lawyers is a peer-review survey of more than 39,000 in-house counsels and private practice attorneys.


Air Quality Constraints on the Public Lands

Law Seminars International Energy Development on Public Lands

July 2010

U.S. EPA Releases Final Rule Requiring Mandatory Reporting of Greenhouse Gas Emissions from Underground Coal Mines, Industrial Wastewater Treatment Facilities, Industrial Waste Landfills and Magnesium Production

On January 1, 2010, the U.S. Environmental Protection Agency's Mandatory Reporting of Greenhouse Gases Rule (MRR), 40 CFR Part 98, went into effect, requiring roughly 10,000 facilities from 11 source categories to annually report their greenhouse gas (GHG) emissions. EPA first proposed the MRR in April 2009, and received a substantial number of comments from a wide range of industries subject to reporting under the proposed rule. In the final MRR, published in the October 30, 2009, Federal Register, the EPA did not provide reporting requirements for a number of industry sectors, choosing instead to delay finalizing the reporting requirements for certain sectors in order to further review public comments and perform additional analyses. EPA has since been busy promulgating additional Subparts of the MRR for specific industry sectors, including those recently finalized and discussed below.


More Stringent Colorado Discharge Permit Requirements Proposed to Take Effect October 1, 2010

The Colorado Water Quality Control Division is implementing changes to the way holders of wastewater discharge permits perform whole effluent toxicity (WET) testing for permit compliance. This week, the Division made available a new draft policy for WET testing, titled "Implementation of the Narrative Standard for Toxicity in Discharge Permits Using Whole Effluent Toxicity (WET) Testing." The policy prescribes new procedures for including chronic, sublethal WET limitations in discharge permits. For many permit holders, the policy, once finalized, will dictate more stringent compliance requirements than currently exist. New permitting requirements could lead to more extensive and more expensive toxicity testing, a greater need for discharge contaminant control measures, and possibly more enforcement actions for non-compliance.


April 2010

Go West Young Man? Air Quality Developments Affecting Western Oil and Gas Exploration and Production

Natural Resources & Environment, The American Bar Association

Co-authors: John R. Jacus and Denee A. DiLuigi

Western U.S. oil and gas (O&G) exploration and production continue to be the subject of intense regional and national interest, not only as they relate to economic and energy security benefits, but also due to increasing air-related environmental concerns. Chief among such concerns is the emission of criteria and hazardous air pollutants (HAPs). This sector’s greenhouse gas (GHG) emissions and potential ability to impair visibility in national parks and wilderness areas are also of increased interest. Unlike other regions of the country facing air quality challenges, the western United States stands out as a primary source of growing emissions – even as states across the region and the O&G industry itself have moved to control more tightly the many minor sources that typify O&G activities.


February 2010

Stormwater Construction and Development Point Source Effluent Limits: New Source Effective Date February 1, 2010

Co-authors: Laura J. Riese and Denee A. DiLuigi

On December 1, 2009, the Environmental Protection Agency (“EPA”) published the Effluent Limitation Guidelines and Standards for the Construction and Development Point Source Category (“C&D Rule”). The C&D Rule will apply where a construction activity discharge is required to have NPDES permit coverage because it is either: (1) a stormwater discharge associated with industrial activity; or (2) a stormwater discharge associated with small construction activity.


New Developments in Colorado Concerning Produced Water, Water Rights and Well Permitting

On August 31, 2009, the Colorado Office of the State Engineer (SEO) issued proposed Rules and Regulations for the Determination of the Nontributary Nature of Ground Water Produced through Wells in Conjunction with the Mining of Minerals (Proposed Rules).

Important Royalty Decision Issued Produced Water, Water Rights and Well Permitting

August 2009

GE's Constitutional Challenges to the UAO Regime Rejected by D.C. District Court

ABA Constitutional Law Committee Newsletter

On Jan. 27, 2009, the U.S. District Court for the District of Columbia rejected General Electric’s (GE’s) remaining constitutional challenge to the “unilateral administrative order” (UAO) regime under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 


Environmental Enforcement Series

Join us for three breakfast briefings examining environmental enforcement issues, including how to successfully navigate inspections during the Obama years, an update on environmental audits and voluntary disclosure, and a discussion of recent changes and developments in air and water quality enforcement.


July 2009

New Financial Assurances for Hardrock Mining

On July 13, 2009, the Environmental Protection Agency (“EPA”) provided notice that the hardrock mining industry will be its top priority for developing financial responsibility requirements for facilities that produce, transport, treat, store, or dispose of hazardous substances.


Successor Corporations May Not be Able to Tap Their Predecessors' Insurance Policies for Historic Liabilities

Contemplating a corporate acquisition? Assuming the predecessor corporation’s latent liabilities (such as asbestos, environmental, product liability, etc.)? Counting on the predecessor’s liability insurance to fund them if they arise? You might want to think again.


CDPHE Issues Guidance to Exempt Out of New Statewide Engine Regulations

On July 1, 2009, the Colorado Air Pollution Control Division (APCD) released a guidance document directed to owners and operators of lean and rich burn engines affected by the December 2008 Regulation No. 7 Rulemaking.


Clean Water Act Jurisdiction Over Excavation Activities: The “Tulloch Rule” Revised

The Colorado Lawyer

Beginning with the “Tulloch Rule” in 1993, the U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) (referred to collectively as the agencies) have attempted to define the scope of Clean Water Act (CWA) jurisdiction over excavation activities in waters of the United States.


June 2009

House Passes American Clean Energy and Security Act

A little after 7 p.m. eastern time on Friday, June 26, the U.S. House of Representatives narrowly passed a highly-controversial and revised version of the American Clean Energy and Security Act (“ACES” aka the Waxman-Markey bill), now an almost 1,500 page bill aimed at controlling pollution that is connected to climate change by establishing mandatory limits on greenhouse gas emissions.


DGS Attorneys Co-Presented at the Annual Steamboat CLE Conference

DGS attorneys Laura J. Riese and Chad D. Williams co-presented at the annual Steamboat CLE Conference with Daniel J. Dunn, Esq., and Hannah Naumoff-Dulski, Esq., on "What to Do When the Enforcer is at Your Door." 


Clean Water Act's Navigable Waters: Is it Sailing into the Sunset?

On June 18, 2009, the Senate Committee on Environment and Public Works approved S. 787, the controversial Clean Water Restoration Act, as amended by a vote of 12-7.  The bill is now headed to the floor of the Senate for a full vote.


New SPCC Compliance Date – November 10, 2010

On June 19, 2009, EPA published a final rule extending the Spill Prevention, Control, and Countermeasure (“SPCC”) compliance date for all facilities to November 10, 2010.  This final rule affects when a facility that is subject to the SPCC rule must prepare, amend, and implement its SPCC Plan.


May 2009

Religious Freedom Restoration Act

The United States Supreme Court has been asked to, and may soon, provide guidance on the Religious Freedom Restoration Act ("RFRA").  RFRA prohibits government action that "substantially burdens" the exercise of religion if the government cannot establish that its actions are the least restrictive means to further a compelling interest.


Public Notice for New General Permit for Produced Water Treatment Facility Discharges – Public Comments Accepted

On April 24, 2009, the Colorado Department of Public Health and Environment, Water Quality Control Division (“WQCD”) published a public notice for a new general permit for discharges from produced water treatment facilities associated with oil and gas exploration and production activities.


Clean Water Act Jurisdiction Over Excavation Activities – The Most Recent Iteration of the 'Tulloch Rule'

The American Bar Association

Clean Water Act (CWA) jurisdiction over certain excavation activities has been in a state of flux since 1993.  For businesses and individuals that often engage in excavation, the uncertainty of federal jurisdiction can sometimes prove to be a major impediment – or at least a moderate setback – to a project. Excavation activities are common in a variety of industries and contexts.


April 2009

Weathering the Storm: Why US Industrial Minerals Mining Operators Should Review Their Stormwater Management Practices and Existing Permits In Response to New Requirements from the EPA.

Industrial Minerals

Co-authors: Bob Micsak and Ben Kass

On 29 SEPTEMBER 2008, the US Environmental Protection Agency (EPA) issued a new Multi-Sector General Permit (MSGP 2008) regulating stormwater discharges from industrial sources. In a change from its previous Multi-Sector General Permit issued in 2000 (MSGP 2000), the MSGP 2008 imposes additional requirements for specific industrial activities, including certain industrial minerals mining operations.


March 2009

Federal and State Proposals to Require GHG Reporting

As expected, EPA Administrator Lisa Jackson announced on Tuesday, March 10, 2009, that the agency would require comprehensive national reporting of emissions of carbon dioxide (CO2) and other greenhouse gases (GHG) produced by major sources in the United States as the agency's first regulatory proposal dealing with climate change and the GHGs that contribute to global warming.


February 2009

Dean Miller Speaks at CBA Environmental Law Section Luncheon

Dean Miller was one of the featured speakers for the CBA Environmental Law Section's Topical CLE Luncheon at DGS on February 24, 2009. The luncheon's topic was "Environmental Litigation Update: EDiscovery & Experts." 


Colorado Adopts Ozone Controls – Oil & Gas Sources Affected

On December 11-12, 2008, the Colorado Air Quality Control Commission ("AQCC" or "Commission") conducted a rulemaking hearing on a proposed "Ozone Action Plan."  The Colorado Department of Public Health and Environment, Air Pollution Control Division ("APCD"), the Regional Air Quality Council ("RAQC"), and the North Front Range Metropolitan Planning Organization ("NFRMPO"), developed this plan after a lengthy stakeholder process that was convened following EPA’s designation of the nine-county Denver/North Front Range area as non-attainment for ozone (the "NAA") in November 2007.


Spill Prevention, Control, and Countermeasure Rule: Amendments, Effective Dates, and Navigable Waters

On December 5, 2008, the Environmental Protection Agency’s ("EPA") Final Rule establishing amendments to the Spill Prevention, control, and Countermeasure ("SPCC") rule was published in the Federal Register. 73 Fed. Reg. 74,236 (Dec. 5, 2008). EPA explains that these amendments are to: (1) provide increased clarity; (2) tailor requirements to particular industry sectors; and (3) streamline certain requirements for those facility owners or operators subject to the rule.


November 2008

Asbestos Contaminated Soils

CBA Environmental Law Update and Hot Topics

October 2008

EPA Issues its New 2008 Multi-Sector General Permit for Stormwater Covering 29 Industrial Sectors

Effective September 29, 2008 (73 FR 56572), EPA issued a new Multi-Sector General Permit (MSGP).  This permit replaces the MSGP 2000, which expired on October 31, 2005.  The new permit is effective in Regions 1, 2, 3, 5, 6, 9 and 10 and comprised of 34 separate regional permits covering the facilities located on lands described in Appendix C of the MSGP. 


New Source Performance Standard JJJJ: Considerations for Owners and Operators of Stationary Spark-Ignited Internal Combustion Engines

In January 2008, EPA promulgated New Source Performance Standards for stationary spark-ignited internal combustion engines.  73 Fed. Reg. 3,568 (Jan. 18, 2008).  The NSPS became effective on March 18, 2008.  Id.  The NSPS apply to new, modified, and reconstructed engines, based on horsepower, type of fuel, and date of manufacture, modification, or reconstruction.


U.S. Army Corps of Engineers and EPA Issue Final Rule on Compensatory Wetland Mitigation Standards and Requirements

On April 10, 2008, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency jointly issued a Final Rule addressing compensatory aquatic resource mitigation work performed in association with activities authorized under discharge permits issued by the Corps.  Compensatory Mitigation for Losses of Aquatic Resources, Final Rule, 73 Fed. Reg. 19594 (April 10, 2008). 


EPA’s Proposed UIC Regulations for Carbon Dioxide Geologic Sequestration Wells

On July 25, 2008, the United States Environmental Protection Agency (EPA) issued a proposed rule for underground injection of carbon dioxide (CO2) for geologic sequestration.  The proposed rule sets forth standards and requirements that apply to operation of wells used to inject carbon dioxide into the subsurface for long-term storage. 


September 2008

Wetland Use: New Rules Severely Limit Scope of Nationwide Permits for Aquatic Sites

New rules adopted by the Army Corps of Engineers on March 9 substantially restrict the scope and availability of widely used nationwide general wetland permits. Nationwide permits have previously been used to authorize over 80 percent of all regulated activities in or adjacent to wetlands and other aquatic sites. These controversial new rules are expected to cause substantial additional delays, costs and restrictions for operators impacting such areas.


June 2008

Carbon Sequestration – An Update on EPA Rulemaking and Other Issues and Developments

For years natural sources of carbon dioxide have been piped to oil reservoirs and utilized for enhanced oil recovery (EOR). More than 50 EOR projects in the Permian Basin of west Texas and eastern New Mexico and others in the Piceance Basin of northwest Colorado use CO2 flood technologies through injection wells regulated as Class II wells under the federal Underground Injection Controls (UIC) program implemented by U.S. EPA. In Colorado, the Colorado Oil and Gas Conservation Commission (COGCC) permits and regulates fluid injection wells for EOR. By all accounts, COGCC regulation of producers and the use of CO2 injection wells has successfully enhanced oil production while protecting underground sources of drinking water supplies, the goal of the federal Safe Drinking Water Act (SDWA) under which the UIC program operates. 42 U.S.C. §§ 300f – 300j26.


Vapor Intrusion Developments – New ASTM Standard

In March 2008, ASTM International issued its Standard E2600-08 entitled “Standard Practice for Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions.”  The purpose of the standard is to define “good commercial and customary practice” for real estate transactions in the United States for conducting vapor intrusion assessments for properties with, or in proximity to, contamination of soil and groundwater by certain volatile compounds.  The goal is to identify whether there is a potential for a vapor intrusion condition to exist.


Air Permitting Source Aggregation in Colorado

The Colorado Department of Public Health and Environment, Air Pollution Control Division (“APCD”), recently issued an addendum to a technical review document in support of a renewal operating permit that it issued in January 2007 that will be of interest to EHS professionals in the oil and gas industry. 


March 2008

Navajo Nation Enacts Tribal Superfund Law

On February 26, 2008, the Navajo Nation Council enacted the Navajo Nation Comprehensive Environmental Response Compensation and Liability Act (the “Navajo Superfund Law” or “NSL”).  The NSL purports to apply to non-Indians and non-members for activity on the Navajo Nation reservation and for all off-reservation activities within Navajo Indian Country.


December 2007

EPA Considering Effluent Limitation Guidelines (ELGs) for Discharges of Coalbed Methane Produced Water

EPA recently initiated a detailed study to determine if the CBM industry should be designated as a subcategory of the Oil and Gas Extraction category for purposes of establishing separate, distinct ELGs for discharges of produced water exclusively associated with the extraction of CBM.


October 15, 2007 Proposed Amendments to the SPCC Rule: What Could They Mean To You?

On October 15, 2007, EPA proposed amendments to the Spill Prevention, Control, and Countermeasure (“SPCC”) rule.  In the course of five years, EPA has revised the rule, proposed additional revisions, and has repeatedly extended its applicable compliance deadlines. 


September 2007

Davis Graham & Stubbs Tops "Best Lawyers" List in Colorado

Davis Graham & Stubbs – with 29 attorneys practicing in 30 fields – ranks first in Colorado-based attorneys listed in the 2008 edition of Best Lawyers in America for the practice areas of commercial litigation, natural resources, environmental law and corporate governance and compliance law. The number of DGS lawyers recognized in the definitive guide to legal excellence increased by three, and includes half of the firm’s partners. The book, targeted for in-house counsel, is to be published in December 2007.


August 2007

Brownfields, Greenfields and Grayfields: Environmental Issues in Real Estate

Co-authors: Gail L. Wurtzler and Denee DiLuigi

No matter what type of real estate transaction or project is being considered, environmental due diligence should be included in the list of activities to be completed before any contract is signed. Environmental due diligence generally refers to a technical and legal inquiry regarding various types of environmental conditions, corresponding legal requirements, and potential liabilities. As used in this paper, the term “environmental due diligence” is not limited to an inquiry solely into possible presence of hazardous materials. The nature of the environmental inquiry will vary based on the transaction, the location of the property, prior uses of the property and other site-specific matters. Due diligence should always be designed and conducted in the context of a specific business transaction.


June 2007

Chambers USA Rankings Highlight Davis Graham & Stubbs Strengths In Commercial Litigation, Environmental Law

Davis Graham & Stubbs ranked in the top tier of Colorado business law firms in the fields of Commercial Litigation and Environmental Law in the just-released 2007 edition of Chambers USA:  America’s Leading Lawyers for Business.  DGS was also recognized in the fields of corporate mergers and acquisitions, labor and employment, and real estate. 


Colorado AQCC Regulation No. 7 Revised

On December 17, 2006, Colorado’s Air Quality Control Commission (“AQCC” or “Commission”) adopted significant revisions to AQCC Regulation No. 7, concerning the control of volatile organic compound (“VOC”) emissions.


Stormwater Permitting Update

COGCC Stormwater Management Policy and WQCD/COGCC Memorandum of Agreement

Renewal of the CDPS General Permit for Stormwater Discharges Associated with Construction Activity

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March 2007

Davis Graham & Stubbs Attorney Bob Lawrence Featured Speaker at Industrial Minerals Workshop

Davis Graham & Stubbs partner Robert W. Lawrence was a featured speaker at the Industrial Minerals Technology Workshop on March 5-7 in St. Petersburg, Florida.  This national conference was presented by the Industrial Minerals Association-North America for industrial minerals industry professionals, executives, consultants, and attorneys.


February 2007

Current and Emerging Stormwater Legal Issues

National Business Institute Seminar

While it may be an overstatement to say there has been a “sea change” recently in the level of regulatory action concerning stormwater compliance, both EPA and the Colorado Water Quality Control Division are directing an increasing amount of their attention and resources toward stormwater regulations and enforcement.


October 2006

Davis Graham & Stubbs Offering Free Seminar on Environmental Laws Impacting Real Estate Development

Davis Graham & Stubbs is offering a complimentary breakfast briefing on Wednesday, October 18, 8:00 to 9:00 a.m. in their offices. The seminar, “Environmental Hot Topics in Real Estate Development” is hosted by the Davis Graham Real Estate Group to brief developers, homebuilders and contractors about key environmental issues impacting construction and development in Colorado. Three environmental partners, Adam Cohen, Laura Riese and Zach Miller, will cover the increased penalties for stormwater discharge and how to avoid them with the permitting process; the new stringent Colorado regulations on asbestos found in soil; and the stricter requirements under wetlands regulation that affect construction projects.


EPA Region 8 Spearheading Oil & Gas Initiative Via Enforcement

ABA Environmental Enforcement and Crimes Committee Newsletter

September 2006

Colorado and Federal Air Quality Developments

The Colorado Air Quality Control Commission (the "Commission") is considering revisions to the current upset provision in Section II.E of the Commission's Common Provisions Conditions Regulation (the "Upset Provision"). Under the current version, upset conditions experienced by operators of sources of air pollutants are not considered violations if the Air Pollution Control Division (the "Division") is notified as soon as possible, followed by a written notice explaining the cause of the occurrence and the action being taken to correct the conditions. The Division has drafted a proposed version of the upset provision which limits the circumstances in which operators can claim an upset, and does not allow for an affirmative defense to claims for injunctive relief, or violations of State Implementation Plan (the "SIP") provisions or federally enforceable performance standards.


Best Lawyers in America Recognizes 26 Davis Graham & Stubbs Attorneys

Twenty-six Davis Graham & Stubbs attorneys practicing in 28 fields will be recognized in the 2007 edition of The Best Lawyers in America. The number of DGS lawyers recognized in the definitive guide to legal excellence increased by five this year, and represents more than 40% of DGS partners overall. DGS ranks first in the number of Colorado-based attorneys listed by the 2007 edition of Best Lawyers in the Commercial Litigation, Natural Resources, Environmental Law, Securities Law and Corporate Governance and Compliance Law practice areas.


Davis Graham & Stubbs Attorneys on the Lawdragon 500 List

Davis Graham & Stubbs attorney Robert W. Lawrence has been chosen as one of only five Colorado lawyers listed in the Lawdragon 500 New Stars New Worlds, the newest list of 500 U.S. lawyers ranked by clients and peers. Lawrence is featured on the list as one of only two environmental attorneys ranked in Colorado. He joins fellow partner Judith M. Matlock, who was named one of the top-ranked energy attorneys in the U.S. in the inaugural issue, The Lawdragon 500: Leading Lawyers in America in October 2005. Lawdragon conducts independent research and online balloting, and interviews thousands of private and in-house lawyers to assemble the guide that reflects excellence in 80 practice areas.


June 2006

Two More Davis Graham & Stubbs Attorneys Selected for International Who's Who Guides

Davis Graham & Stubbs lawyers Deborah Friedman and Tom McNamara were recently recognized by Who’s Who Legal as among the leading lawyers worldwide in their respective fields. Ms. Friedman was named in The International Who’s Who of Mining Lawyers 2006, and Mr. McNamara was selected for The International Who’s Who of Commercial Litigators 2006.


September 2005

Lowry Cleanup Likely to Top $134.5 Million/How Much is in the Fund Set Aside to Rehab Landfill Site Remains a Secret

Rocky Mountain News

The cost to clean up the witches' brew of toxic chemicals buried at the Lowry Landfill in Arapahoe County is expected to top $134.5 million, and that doesn't include millions of dollars spent before 1994. The newest totals have emerged in the wake of a legal settlement last month between the Environmental Protection Agency and the operators of the site: the city and county of Denver and Waste Management of Colorado Inc.


Tenth Circuit Issues Important Ruling on Application of Clean Water Act to Inactive Mine Sites

Rocky Mountain Mineral Law Foundation

On August 24, 2005, the U.S. Court of Appeals for the Tenth Circuit issued an important decision in the case of Sierra Club v. El Paso Gold Mines, Inc., Case No. 03-1105, on appeal from the U.S. District Court for the District of Colorado. The case explores and expands upon prior precedent surrounding the application of the Clean Water Act to inactive mining sites. The issue has generated much debate among environmental groups, industry and various administrative agencies and had been addressed by some courts, but not by the Tenth Circuit.


December 2004

Transport of Hazardous Waste

Regulating the transport of hazardous waste is key to any system of comprehensive regulation such as that envisioned by Congress in its passage of the Resource Conservation and Recovery Act (RCRA). RCRA’s trademark cradle-to-grave regulatory scheme would not be possible without effective, implementable procedures for tracking hazardous waste during transport from its place of origin to its final destination. Considering how vital this component of RCRA’s regulatory scheme is to the overall success of the program, it perhaps is surprising to note how few regulations EPA has developed that apply to the transport of hazardous waste. Part 263 of Title 40, C.F.R., is quite sparse compared with the voluminous provisions in RCRA’s generator standards or standards for treatment, storage, and disposal (TSD) facilities.


November 2004

Finding and Managing Appropriate and Cost Effective Technical Assistance in Major Environmental Cases

Co-authors: Lary D. Milner and Roger L. Freeman

We learn at a young age that our "natural environment" is comprised of a collage of integrated elements. Who cannot recall sketching rudimentary pictures (or, more recently, watching their kids do so) of the sky, soil, water, sun and other basic environmental components? 


RCRA Compliance Orders in the Oil Patch: Sleeping Giant or Paper Tiger?

Co-authors: John Jacus and Susan Keller Geer

The Solid Waste Disposal Act,1 as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), is best known for its prospective, "cradle-to-grave" regulation of hazardous wastes.


September 2004

Mineral Processing Under the EPA Spotlight

Industrial Minerals

On 10 DECEMBER 2003, the  United States Environmental Protection Agency (EPA)  announced that among its  priorities for the next three years would be increased enforcement against mineral processing facilities 1. The question naturally arises whether this initiative will  subject the industrial minerals sector to increased environmental scrutiny.


June 2004

Recent Air Regulatory Changes in Colorado Affecting the Oil & Gas Industry

Presented to the Natural Resources & Energy Section of the Colorado Bar Association

October 2003

OSHA Initiative in the Oil Patch

Safety is an integral part of oil field operations. However, most companies rarely experience an actual investigation by the U.S. Occupational Safety and Health Administration ("OSHA") or equivalent state agencies. This is due to a number of factors, including (1) the absence of industry-specific OSHA regulations; (2) the geographically broad nature of exploration and production ("E&P") activities; and (3) OSHA's recent practice of handling most complaints through notice letters.


January 2003

IBLA Reverses Approval of Coalbed Methane Project and Remands for Further NEPA Analysis

Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter

The Wyoming State Director of the Bureau of Land Management (BLM), affirmed a decision record/finding of no significant impact (DR/FONSI) for the Lower Prairie Dog Creek Coal Bed Methane Project (Project) in the Powder River Basin of Wyoming and a DR/FONSI for a plan of development that would partially implement the Project. The Interior Board of Land Appeals (IBLA) in Wyoming Outdoor Council, 158 IBLA 155, GFS (O&G) 2(2003), voted 6-3 to reverse the BLM’s approval of the Project and remanded the case for further analysis under the National Environmental Policy Act (NEPA). The IBLA found that the BLM failed to take the required “hard look” at water quality issues presented by the proposed Project and also failed to properly assess the cumulative impacts of reasonably foreseeable coalbed methane (CBM) activity in the Project area.


December 2002

New Regulation of Condensate Storage Tanks in Colorado - Postponement of Revised SPCC Plan Regulations

The Environmental Practice Group pf Davis Graham & Stubbs LLP would like to alert its clients and friends in the oil and gas industry to two very recent developments that may affect their operations in Colorado.


October 2002

EPA Revises SPCC Rule

Almost every significant coal mining operation has a Spill Prevention, Control, and Countermeasure Plan (SPCC Plan). The U.S. Environmental Protection Agency (EPA) issued a Final Rule in July 2002 promulgating its latest revisions to the SPCC Plan requirements contained in the Oil Pollution Prevention and Response regulation. 67 Fed. Reg. 47042 (July 17, 2002). The SPCC rule, which EPA initially promulgated in 1973 under the authority of the Clean Water Act, drives EPA's oil spill prevention and response program primarily by its mandate that certain facilities prepare a detailed written SPCC plan and/or Facility Response Plan.


July 2002

Environmental Checklists for Resource Projects to Mineral Law Foundation

On July 24, 2002 Roger Freeman and Laura Nagle, partners in DGS' Environmental Practice Group, presented a detailed paper reviewing the variety of environmental permits, authorizations and licenses required to initiate start-up operations of oil and gas extraction facilities. The associated outline and paper are widely applicable to the variety of start-up operations common to the extraction and resources industry, including the coal mining industry.


February 2002

Evidence of Historic Releases at Oil & Gas Sites: How Much is Enough?

Oil producers (like many other industries) are all too familiar with the broad reach of environmental laws – ominous terms like "strict liability" echo through their many intricate provisions. Although the oil & gas industry has often relied on exemptions or exclusions contained in the Superfund statute and various hazardous waste laws to limit its exposure to environmental claims, private property owners often turn to such alternatives as common law, the Oil Pollution Act ("OPA") and other available mechanisms to address environmental issues. In 2001, however, two different federal appellate courts placed important limits on claims where surface owners sought recovery against current producers based on historic oil production practices. These two recent decisions illustrate that anecdotal evidence of past releases from oil production or storage facilities will not be sufficient to substantiate damage actions.


January 2002

Ninth Circuit Excludes Passive Soil Migration from Definition of

Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter

A recent decision by the U.S. Court of Appeals for the Ninth Circuit holds that the definition of hazardous substance “disposal” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, does not include “the gradual passive migration of contamination through the soil.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001). This decision has important implications for determining the CERCLA liability of former or interim owners of contaminated sites, including oil and gas and mine sites, who have not themselves actively contributed to the placement or movement of hazardous substances at a site during the period of ownership. It also may be important to persons owning property onto which contamination has passively migrated from off-site sources, which can be a common scenario at resource extraction or production sites. The decision limits the basis for CERCLA liability in both situations.


November 2001

RCRA Subtitle I: The Federal Underground Storage Tank Program

ELR News & Analysis

Until the mid-1980s, underground storage tanks (USTs)—other than those containing hazardous wastes—went largely unregulated.  In 1984,1 Congress amended the Resource Conservation and Recovery Act (RCRA)2 to add Subtitle I,3 creating the federal UST regulatory program, which Congress expanded in 1986.4


October 2001

Environmental Issues in Redevelopment

Colorado Real Estate Journal

The redevelopment of industrial, commercial and residential properties is always a timely issue for the real estate industry, but never more so than now.  Even with the slowed market of late, redevelopment is an increasingly attractive alternative that can revitalize neighborhoods, return idle property to profitability, reduce urban sprawl and save the cost of infrastructure development when compared to raw land.

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April 2001

Mold Liability: A Growing Concern

The Colorado Real Estate Journal

Real Estate professionals should be aware of a relatively new basis for premises and product liability and associated hazard abatement expense: mold. Of course, mold is literally nothing "new," and it is ubiquitous in the outdoor environment; however, it is a growing concern for building owners, managers and purchasers as the number and size of mold-related claims and judgments has grown significantly in the last few years.


February 2001

TMDLs... Why Should We Care?

Boulder County Bar Association - Natural Resources/Environmental Law Section

Outgoing EPA Assistant Administrator for Water, J. Charles Fox stated in a recent interview that TMDLs were at the top of his list of priorities of things he wanted to accomplish while in office:

"I felt and still believe that the TMDL program will be defining water pollution control in this country for the next few decades."


December 2000

Risks, Remediation: Contaminated Property Now May Offer Owners Attractive Economic Opportunities

Colorado Journal

For more than 20 years, government and private parties have been addressing issues relating to contamination of real property. During that time, technical knowledge regarding risks and remediation has advanced. As a result, views of contaminated real property have changed dramatically. No longer do parties automatically assume that such property is a substantial liability. Rather, such property may offer attractive economic opportunities.


November 2000

Awareness of Pitfalls is Essential for Corporate Officers to Avoid Jail Time

Colorado Journal

Accusations and convictions of environmental crimes are not limited to dumpers emptying hazardous waste from tanker trucks under cover of darkness. Corporate managers may unwittingly be subject to criminal liability if they qualify as "responsible corporate officers" and my face monetary penalties and jail time, not only for acts of subordinates, but also for failing to prevent or correct such acts.


Helping Your Client Iake Its First SEP


You represent a substantial corporate client that faces a large EPA civil penalty for alleged violations of environmental law. Despite your best negotiating and careful investigation of the facts, the EPA has demanded a penalty of approximately $1.1 million and your defenses are limited, at best. You have just suggested to the general counsel that the company consider a supplemental environmental project (SEP) as a component of possible settlement. You explain that an SEP is an environmentally beneficial project that a respondent may undertake in settlement of an action in partial mitigation of penalties, but which it is not otherwise legally required to perform.


October 2000

An Array of Issues: The Legal Climate is Conducive to an Environmental Management Overhaul

The Colorado Lawyer

The field of Environmental Law has been known for sometime as long on acronyms and legalese, but short on clear and simple steps to achieve compliance with legal requirements. This reputation has been earned in large measure due to a complex array of overlapping and sometimes inconsistent legal requirements under state and federal laws that often address a single class of chemicals or a single environmental medium – water, air or waste. The formidable challenge of navigating such requirements is then magnified by the stiff penalties and other sanctions imposed for non-compliance that is discovered by or disclosed to regulators.


September 2000

Know Your Surroundings: The Average Company Should Take Extra Care to Comply With Laws

Colorado Journal

Environmental crimes are scary business. Statutes like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act carry stiff criminal penalties for certain "knowing" and negligent violations.


A New Environment: Legislature Considers Bills That Alter Hazardous Waste Programs, Permit Fees

Colorado Journal

During its recently concluded session, the Colorado Legislature considered several important environmental matters in addition to the amendment to Colorado’s voluntary environmental self-audit program, HB1481 (to be codified at Colorado Revised Statutes Section, which was discussed in a column in July. See Todd Olinger, "Mutual Agreement: Colorado, the EPA Have to Terms With State Environmental Program," Colorado Journal, July 12.


June 2000

Ergonomic Issues / Workplace: OSHA Is Trying to Regulate Injuries to Employees

Colorado Journal

Both the scientific and legal community continue to fiercely debate the cause and cure for the broad group of injuries and illnesses known as cumulative-trauma disorders or repetitive-motion injuries and their nexus to such workplace activities as lifting, pulling, bending and other inherent body movements. Such venerable institutions as the University of Michigan and University of Wisconsin have established entire departments centered on the study of ergonomics, the science of work.


May 2000

Cleaning Up: IRS Decisions Offer Financial Incentives for Environmental Remediation

Recent legal, legislative and administrative actions have enhanced or are likely to enhance the financial incentives for environmental cleanups. Among other developments, in December, the Internal Revenue Service issued a technical advice memorandum allowing a current year deduction for certain environmental cleanup costs incurred as part of site preparation work for new construction.


March 2000

Law & Accounting: Some Remediation Costs Deductible

Colorado Real Estate Journal

A recent Internal Revenue Service memorandum further clarifies that certain environmental remediation costs can be fully deducted in the year incurred.


January 2000

Detoxifying – Environmental Law: New Cases Control Recovery of Costs for Cleanup

The Daily Journal

Although the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections 9601-75 (1994), became law almost 20 years ago, parties still are litigating at considerable cost to clarify the meaning of its provisions. This judicial process increases in complexity as a result of the frequent pronouncement of administrative reforms by the U.S. Environmental Protection Agency, the continuing debate over CERCLA’s draconian liability scheme and high costs, and the inability of Congress to re-authorize and amend the statute in the middle of such controversy.


June 1999

Calculating Worth / Environmental Law: Even Contaminated Land Invariably Has Some Value

Colorado Journal

The question of valuing contaminated land arises in a number of situations. Among them are real estate transactions, bankruptcy or probate proceedings, property tax appeals and litigation. Case law, appraisal and valuation standards and commentators address the issues regarding valuation of contaminated land.


Coming Full CERCLA: An Update on Superfund Developments

Environmental Liability

In the past couple of years, a number of important decisions have been written which will significantly affect future interpretation and enforcement of the Comprehensive Environmental Response, Compensation, and Liability Act ('CERCLA' or 'Superfund') in the United States. Although enacted almost 20 years ago, it has taken the courts a considerable amount of time and costly litigation to develop a basic understanding of this controversial environmental statute.


May 1999

Colorado and the EPA Struggle Over the State's Newly Reaffirmed Environmental Audit Law

The Colorado Journal, May 26, 1999

In April, Colorado Gov. Bill Owens signed into law Senate Bill 70, which effectively reaffirmed and reauthorized the state's controversial Environmental Audit Privilege Law, with one significant change. Unlike SB139, the original legislation passed in 1994, SB70 has no "sunset" provision. The original legislation was to sunset after five years, this July.


April 1999

Unveiling the Parent - When Can Corporate Officers Be Personally Liable Under CERCLA for a Subsidiary?

The Colorado Journal

The Supreme Court's recent decision in United States v. Bestfoods, 118 S.Ct. 1876 (1998), provided some much-needed guidance on when a parent corporation can be held liable under the Comprehensive Environmental Response, Compensation, and Liability, Act 42 U.S.C. Sections 9601-75 (1994), as an "operator" of a polluting "facility" that is owned or operated by the parent's subsidiary. 


March 1999

Parent Corporation Liability Under CERCLA After United States v. Bestfoods

The Colorado Lawyer, Vol. 28, No. 3, March 1999

Companies have long wondered if they would be held liable as owners or operators in the Superfund context for the actions of their subsidiaries. Their confusion was compounded by disparate precedents in the U.S. circuit courts-the circuits were all over the board on whether to "pierce the corporate veil" to hold parent companies liable under CERCLA ' 107(a), and, if so, what factual circumstances and legal standards they would apply under that analysis.


October 1998

A Sensible Superfund Settlement for Operators

1998 International Used Oil Conference & Trade Show

CERCLA's primary purposes are (1) to provide the government with authority to respond to the release of threatened release of hazardous substances, pollutants or contaminants into the environment; (2) to establish a broad scheme for imposing liability on four classes of persons designated in the statute as responsible; and (3) to create a fund, known as the Hazardous Substance Superfund, to finance the cleanup of hazardous substance releases. A release of petroleum does not trigger CERCLA response actions. However, a release of used oil containing hazardous substances may trigger CERCLA response actions.


June 1998

Cleanup on the Federal Lands Meets the Private Sector

Rocky Mountain Mineral Law Institute

For nearly two decades the United States has been engaged in an extensive cleanup program of historic contamination sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) and other statutory authorities. In recent years a new phase of this environmental work has begun to target abandoned mine sites and other facilities located wholly or partially on federal lands. This paper will explore emerging federal land cleanup programs spearheaded by the United States Forest Service (Forest Service) and other federal agencies and their relationship to the private sector.


May 1998

Superfund: Threat or Menace?

National Oil Recyclers Association

CERCLA's primary purposes are (1) to provide the government with authority to respond to the release of threatened release of hazardous substances, pollutants or contaminants into the environment; (2) to establish a broad scheme for imposing liability on four classes of persons designated in the statute as responsible; and (3) to create a fund, known as the Hazardous Substance Superfund, to finance the cleanup of hazardous substance releases. A release of petroleum does not trigger CERCLA response actions. However, a release of used oil containing hazardous substances may trigger CERCLA response actions.


January 1998

Recovery of Damages for Contamination of Private Property: The US Perspective

Environmental Liability, Vol. 6, Issue 4

In the United States today much so-called environmental litigation involves claims for damages resulting from contamination of private property. These claims are usually based on common-law theories of relief, namely negligence, strict liability, trespass and nuisance. In toxic tort property damage cases in the United States, a plaintiff would typically seek to recover damages for the contamination of its property under one or more of those claims for relief. Essentially the same measures of property damages apply under each of the claims. 


Proximal Fear

The Daily Journal

Injury: Owners of land that is not fully decontaminated or is located near contaminated property may not find it easy to recover stigma damages for loss of market value.

The term "stigma damages" can describe damages for significantly different injuries. In some cases, it is the loss in value of a property that, although remediated, is not totally decontaminated. In other cases, it is the diminution in value of an uncontaminated property that is located near contaminated land.


June 1997

Reviving Third-Party Liability Defense

Colorado Real Estate Journal, June 4, 1997

When it comes to purchasing or leasing property with any type of environmental problem, the rule of thumb in the real estate industry, until recently, has been pretty straightforward: Forget it! This mind-set is largely a result of the sweeping liability net created by the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et.seq. (CERCLA or superfund). In fact, much of the growth in the environmental industry has been driven by concern over CERCLA liability resulting from the acquisition of real property.