Environmental

Our environmental experience and expertise is built on more than twenty five years of innovation and success in the areas of permitting/compliance, risk management, enforcement, and litigation. Our focus is on working with clients and, as appropriate, drawing on outside technical expertise, to solve and resolve to our clients' benefit complex and often cutting-edge environmental issues and liabilities.

Environmental Litigation

Temkin & Hardt LLP's practice in the environmental litigation arena is defined by extensive courtroom and trial experience, on the one hand, and extensive practical experience with conflict resolution and settlement opportunities, on the other. 

For example, the firm, as co-counsel, recently defended a major US company in a lawsuit in federal court in Montana seeking over $100 million on a CERCLA contribution claim. The defense team prevailed at summary judgment on an issue that has split the federal trial courts, and an appeal is pending in the 9th Circuit.

The firm is lead counsel in defending a toxic tort suit against a major oil and gas company in federal court in Wyoming involving a gas field that has been the subject of high profile press coverage and ongoing regulatory scrutiny. 

The firm also recently litigated and then favorably settled an insurance coverage case in federal court in Oregon on behalf of an estate and multiple beneficiaries to resolve cleanup-related defense and indemnity obligations of several insurers under multiple CGL policies.

The firm's lawyers represented the sole remaining defendant in the largest federal Superfund case ever to go to trial. The case, involving the Coeur d'Alene Basin in North Idaho, presented a number of key issues of first impression on both response cost and natural resource damage liability.  The Phase I liability trial in 2001 involved 76 days of trial proceedings and the Court’s decisions in the case are frequently cited as precedent on several issues, including the apportionment of CERCLA liability.  The Phase II trial was stayed by a major bankruptcy proceeding.  The firm negotiated an unprecedented, ability-to-pay settlement finally resolving the case in 2011, 15 years after the lawsuit initially was filed.

The firm also served as trial counsel for one of the country’s largest mining companies in a CERCLA case arising out of a historic uranium mine on Native American lands in Washington State.  In that case, the United States was found liable as a CERCLA owner and assigned a one-third share of cleanup costs.

In a citizen suit alleging Clean Water Act and RCRA claims related to contamination from a historic mining district in Colorado, the firm obtained a dismissal from the U.S. District Court on a motion for judgment on the pleadings.

The firm's environmental litigation practice also involves cleanup responsibilities arising out of private party transactions and contracts. For example, several years ago two of the firm's partners successfully defended a major mining client against private party cleanup claims in a multi-week jury trial in federal court in Sacramento. The court found our client not liable on any of plaintiff's claims and awarded attorneys fees and costs to our client. More recently, that judgment is being used to ward off State of California cleanup claims. 

Our firm's lawyers also have considerable experience in both defending and prosecuting citizen suit claims under both the Clean Water Act and the Resource Conservation and Recovery Act.

Environmental Risk Management (including Voluntary Cleanups and Transactional Work)

Our risk management practice falls into two categories:  risk counseling and transactional work. The risk counseling practice has us advising clients, including as common counsel for groups of clients, on large-scale, long-term environmental risks.  For example, the firm for many years successfully represented a group of companies with historic ties to a long inactive mining site in northeastern Nevada, upstream of an Indian reservation. The firm, as common counsel, negotiated an innovative State-lead cleanup that would also resolve EPA and Natural Resource Damage claims asserted by federal trustees and downstream Indian Tribes.

Closer to home, the firm represents a group of companies that have assumed responsibility for cleanup of a chlorinated solvent plume that over time has dispersed down-gradient and offsite in a northern Denver suburb. The companies have worked cooperatively with the State agency and the municipality for a number of years to position the site for a final remedy that should not require remediation of the offsite plume or of deep groundwater.

The firm also has advised a large metropolitan wastewater district on managing the risks and impacts associated with the migration of large volumes of petroleum on to its property from a neighboring oil refinery.  

The second aspect of the risk management practice is transactional. Our environmental lawyers have decades of experience assisting clients with the acquisition and transfer of properties, entities and assets affected by environmental liabilities.  Our experience includes negotiation and drafting environmental provisions for a wide variety of transactions, from property leases and purchase/sale contracts to corporate asset and merger transactions, and in addressing related notice and disclosure issues. Our transactional clients include banks, a national sporting goods company, a brick manufacturing company, oil and gas and mining companies, and a variety of real estate managers and developers. We continue to build on our reputation for overcoming the hurdles and getting the deal done! 

The firm’s lawyers also routinely work with voluntary cleanup programs in many different states, and have successfully developed innovative strategies to assure cleanup approvals or obtain no further action determinations for Brownfields properties ranging from former dry cleaner locations to industrial and mine sites being repurposed for residential use. We also have considerable experience in manuscripting environmental insurance coverage and other surety mechanisms to support transactions involving distressed property or ongoing cleanup commitments.

Environmental Compliance, Permitting and Enforcement

The firm's experience in the environmental compliance arena extends to all aspects of traditional planning, permitting and enforcement, as well as compliance requirements for generators and other regulated entities, including current and former underground storage tank owners and operators, under federal and state hazardous, solid waste and water quality statutes. Examples of our work in these areas include assisting a client in the oil and gas industry in obtaining permits under the Clean Air Act and federal fuels regulations, and the defense of related civil enforcement proceedings. We successfully advised a major resort developer seeking a controversial §404 dredge and fill permit for a ski area redevelopment project in Colorado. We also assist criminal counsel in the defense of parties charged with environmental crimes.