Kaplan Kirsch & Rockwell assists clients in a broad range of environmental compliance matters. The firm's lawyers have guided clients in the performance of environmental audits of their operations and properties in order to assess potential liabilities and compliance obligations under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Emergency Planning and Community Right-to-Know Act (EPCRA) the Clean Air Act, the Clean Water Act and related state laws. The firm has assisted clients in obtaining environmental permits, in responding to compliance orders and notices of violation, and in negotiating and implementing administrative orders, voluntary cleanup plans and consent orders. When litigation has been inevitable, Kaplan Kirsch & Rockwell lawyers also have been principal litigation counsel in environmental and related matters in state and federal trial and appellate courts throughout the United States. In addition, the firm's attorneys have participated in numerous matters before state and federal agencies, including CERCLA and TSCA administrative proceedings before the EPA, the public comment process for proposed rulemakings before various state and federal agencies, state implementation plan development, and in water quality, voluntary cleanup and hazardous waste permit matters before the Colorado Department of Public Health and Environment and the Colorado Department of Natural Resources. The firm's practice also has included counseling of lenders, borrowers, owners and potential purchasers on contaminated property issues.



Air quality requirements create some of the most difficult compliance and development challenges for existing and proposed projects. For example, air quality conformity and permit requirements can generate daunting obstacles for project development. Emerging air toxics and criteria air pollutant issues often cause significant challenges for NEPA, CEQA and other environmental reviews. In many areas, air quality requirements and constraints affect land use and transportation development. All of these issues can implicate high profile environmental justice issues. Similarly, enforcement actions brought under the federal Clean Air Act and similar state statutes can result in significant fines and injunctive relief for entities facing difficult compliance obligations. Looking into the future, addressing greenhouse gas emissions will become an increasingly important part of air quality regulation.

Kaplan Kirsch & Rockwell lawyers bring considerable legal experience and technical understanding in all of these issues to develop practical and effective strategies for clients. Kaplan Kirsch & Rockwell lawyers provide counseling and representation to clients in compliance reviews, administrative rulemaking, project development, environmental review, and litigation regarding air quality issues. This representation has involved automobiles, trucks, aircraft, non-road sources, power plants, natural gas facilities, oil refineries, chemical plants, mining facilities, dust control, and other sources.

For example, Kaplan Kirsch & Rockwell lawyers have worked on addressing complex air quality challenges posed by proposed expansion at Los Angeles International Airport. Criteria and air toxic emissions from nonroad sources and a number of stationary sources raised a number of issues under permitting regulations, the Clean Air Act's conformity regulations, NEPA and CEQA. The firm's lawyers have also addressed complicated conformity, NEPA and air toxics issues associated with highway development in states including California, Colorado, Illinois, Indiana and Nevada.

In addition to air quality issues associated with project development, the firm's lawyers have represented clients in groundbreaking compliance and enforcement matters related to the Clean Air Act. These matters have included representation of major automobile and engine manufacturers in enforcement and recall matters, including cases relating to "defeat devices" and successful negotiation of an amendment to a New Source Review Consent Decree on behalf of the purchaser of a local oil refinery. The firm's lawyers also have represented a major natural gas producer in enforcement matters addressing complicated issues associated with jurisdiction in Native American reservations, a municipality assessing the safety and emissions of bordering chemical plants, an automobile production facility in a matter involving the malfunction of the facility's regenerative thermal oxidizer, and Midwestern power providers in New Source Review Initiative cases brought by the U.S. EPA.

The firm's lawyers are frequent speakers and authors on cutting-edge issues involving air quality, including diesel particulate matter, conformity, air toxics and new EPA standards for ozone and particulates.



Kaplan Kirsch & Rockwell lawyers have worked widely in the area of water resources projects and water quality issues and are well-versed in the multi-jurisdictional aspects of this field. Our work has involved comprehensive analysis of the various levels of federal, state and local regulation applicable to water resources development, as well as the related environmental and land development laws. At the intersection of water resources projects and water quality, we have participated in matters related to minimum instream flow requirements before various administrative agencies, the legislature, and state and federal courts. Firm lawyers are often called upon to give special counsel to clients seeking review of legislative proposals or potential litigation involving water resources issues.

The firm's lawyers have extensive experience with the requirements of the Clean Water Act and state statutes implementing delegated authority under the Clean Water Act. In particular, the firm has worked extensively with NPDES permitting, stormwater permitting, TMDLs, section 319 grants, non-point source issues, and Section 404 permits. A careful and strategic approach to the requirements of Section 404 - and its interaction with other requirements such as NEPA or the Endangered Species Act - is critical to the success of such projects. Our attorneys have assisted clients with Section 404 permitting issues associated with highway, airport, dam, flood control, commercial, residential and other projects nationwide.

Water quality issues, including applicable standards for both ground and surface water, are central to the firm's work in environmental remediation and clean-up at sites across the country. For example, the firm's lawyers have defended clients in complex state and federal cleanup cases involving groundwater contamination, and have assisted a landowner in obtaining a state settlement related to contamination of the landowner's wells from upgradient salt disposal. In performing this type of work the firm's lawyers have acquired extensive experience with federal and state water quality standards, water quality sampling and monitoring, vapor intrusion issues, and water quality remediation technology. Water quality issues also are often crucial in many of the project development matters handled by the firm's lawyers.



Kaplan Kirsch & Rockwell lawyers routinely represent clients with respect to their rights and responsibilities under CERCLA, RCRA and other federal and state statutory schemes for the cleanup of contaminated sites and contribution claims for remediation costs. The firm has represented private parties as well as cities, counties and other public jurisdictions concerning a wide variety of environmental issues related to remediation of contaminated sites as well as the regulation of municipal landfills under RCRA.

Kaplan Kirsch & Rockwell is best-known for the quality of its representation in unusually complex environmental remediation projects. Some examples include:

  • Firm lawyers have assisted a client in working with a locality to implement a comprehensive package of zoning, development guidelines and public amenities intended to contribute to a more cost-effective remediation of a large Superfund site. This representation also included the preparation of extensive public comments, analyses of "applicable or relevant and appropriate" cleanup requirements, and "shadow" assessments designed to facilitate the remedy selection process and craft an administrative record supporting the client's preferred remedy if a challenge became necessary.

  • The firm's lawyers have assisted a public entity in a complex transaction involving the conveyance of a municipal landfill site from the federal government and negotiation and implementation of a state-supervised voluntary cleanup and redevelopment before the adoption of a state voluntary cleanup program. Issues included identification of CERCLA-compliant cleanup standards for closure and waste management and evaluation of remediation alternatives.

  • The firm has assisted the master redeveloper of one of the country's largest urban infill projects in all aspects of the contaminated property redevelopment process, including negotiating purchase and development agreements that allowed phased remediation under the state voluntary cleanup program by the seller municipality, incorporating risk-based cleanup standards and remedial oversight mechanisms, restrictive covenants, special district tax-increment financing, infrastructure development agreements, and negotiated entitlements. The firm's attorneys also assisted the client in developing an environmental due diligence process and construction materials management procedures, in developing and negotiating an environmental insurance program, in drafting and negotiating environmental disclosures to be provided to prospective homebuyers and tenants, in negotiating and developing the client's form resale agreement, and in developing the client's corporate guidelines for negotiating environmental provisions of commercial leases.

  • Kaplan Kirsch & Rockwell lawyers assisted an environmental consulting firm in negotiation of a fixed price remediation agreement and associated cost cap and pollution legal liability policy for remediation and redevelopment of a former manufacturing site under RCRA Order.

  • The firm is general counsel to a non-profit corporation that owns a contaminated parcel of property near Denver, Colorado, and which has undertaken a ten-year effort to remediate extensive site conditions associated with its former use as a mining experimental plant. Firm lawyers have assisted this client in issues under CERCLA, TSCA, radioactive materials licensing, the state Voluntary Cleanup Act, the Clean Water Act, and other authorities.

  • The firm represented the master developer of a bioscience park at the former Fitzsimons Army Medical Center in negotiating environmental agreements and developing a program for managing and remediating contamination and obtaining regulatory approvals as part of the site development process.

  • The firm represented the master developer of portion of a former gunnery range in negotiating a consent agreement with the state health department and developing an insurance program and cost recovery approach to address potential ordnance contamination encountered during a phased development process.

    • The firm's lawyers also have provided representation of parties in a wide variety of litigation and negotiated settlements of remediation and clean-up matters, principally in multi-party, federal district court litigation of cost recovery and related common law tort claims. Most recently, the firm represented a recycling company in responding to a 104(e) information request and associated negotiations under CERCLA related to former operations on an NPL mining site. Kaplan Kirsch and Rockwell attorneys have also assisted clients with professional service and construction contracting associated with site assessment and subsequent remedial efforts. We have achieved a high degree of success in obtaining cost-effective results that meet client goals.

    Kaplan Kirsch and Rockwell lawyers publish and speak frequently on issues arising in the context of the development of contaminated properties, including brownfields redevelopment and voluntary cleanup programs.



    South Coast Air Quality Management District v. BP West Coast Products, LLP, No. BC291876 (Cal. Super. 2003) (represented AQMD in action against oil company for repeated violations of state air quality laws)

    U.S. v. Williams Field Services, No. 02B0199 (D. Colo. 2002)(represented defendant in negotiation of Consent Decree relating to alleged Clean Air Act violations at a gas processing plant within a Native American reservation)

    Brown Group v. Hathaway et al., C.A. No. 01-AJ-0917 (D. Colo.) (represented PRP in CERCLA cost recovery, contribution and common law tort action)

    Colorado School of Mines v. AK Steel et al., C.A. No. 99-N-1863 (D. Colo. 2001) (represented third-party defendant/PRP in CERCLA cost recovery action)

    United States v. Conoco Inc., No. H-01-4430 (represented buyer of oil refinery obtaining amendment to pre-existing New Source Review Consent Decree)

    U.S. v. IBM Corp., C.A. No. 01-B-1017 (D. Colo. 2001) (represented PRP in CERCLA cost recovery action) < p/> Colorado School of Mines v. Teck Corp., C.A. No. 99-M-1310 (D. Colo.) (represented assignor of claimant in CERCLA cost recovery and common law tort action)

    Com. of Va. v. E.P.A., 108 F.3d 1397 (D.C. Cir. 1997) (represented motor vehicle manufacturing trade association in successful challenge to EPA regulations regarding motor vehicle emissions standards)

    Mathews v. Dow et al., 947 F. Supp. 1517 (D. Colo. 1996) (represented PRP in CERCLA cost recovery, contribution and common law tort action)

    U.S. v. General Motors, No. 95CV02215 (D.D.C. 1995) (represented defendant in negotiation of Consent Decree regarding pollution controls for several automobile and truck models)

    Holy Cross Wilderness Defense Fund v. Madigan, 960 F.2d 1515 (10th Cir. 1992) (challenge to wetlands permitting process)

    Sierra Club v. Block, 615 F. Supp. 44 (D. Colo. 1985); Sierra Club v. Block, 622 F. Supp. 842 (D. Colo. 1985); Sierra Club v. Lyng, 661 F. Supp. 1490 (D. Colo. 1987), dismissed as unripe sub nom. Sierra

    Club v. Yeutter, 911 F.2d 1405 (10th Cir. 1990) (complex, precedent-setting litigation establishing existence and scope of federal reserved water rights in wilderness areas)

    Expansion of Los Angeles International Airport, CA

    Development of new international airport, Las Vegas, NV

    Redevelopment of former Stapleton International Airport, Denver, CO

    Redevelopment of former Fitzsimons Army Medical Center, CO

    Redevelopment of former Lowry Bombing and Gunnery Range and Lowry Training Annex, CO

    Representation of Costilla County Conservancy District in water quality proceedings before the Colorado Department of Public Health and Environment and the Mined Land Reclamation Board, CO

    Redevelopment of Air National Guard facility, Chicago, IL

    Anaconda Smelter and Clark Fork River NPL sites, MT

    Landfill closure and redevelopment, NV

    Cleanup of former property of the Cleveland-Hopkins International Airport under the Ohio Voluntary Action Program, OH