Site Cleanup and Compliance

Kaplan Kirsch & Rockwell assists clients in a broad range of environmental compliance matters.  We are best known for work on unusually complex compliance and cleanup projects.  Our attorneys routinely represent clients with respect to their rights and responsibilities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), and other federal and state statutory schemes for the cleanup of contaminated sites and contribution claims for remediation costs.  We also represent private parties, cities, counties, and other public jurisdictions negotiating and implementing administrative orders, voluntary cleanup plans, and consent orders; responding to compliance orders; acting on notices of violation; and in litigation.

Representative Cases

West End 38, LLLP et al. v. Stinker Stores, Inc. et al., C.A. No. 20-CV-01847 (D. Colo. 2020) (represent a landowner in RCRA citizen suit against adjacent gas station whose UST releases caused petroleum contamination of soil and groundwater on landowner’s property)

City of Colton v. American Promotional Events, Inc., West, 614 F.3d 998 (9th Cir. 2010); City of Colton v. American Promotional Events, Inc., 277 F.R.D. 578 (C.D. Cal. 2011) (represented County of San Bernardino and number of other parties in major CERCLA cost recovery litigation; negotiated settlement that secured precedent setting protections for clients over objections of non-settling parties)

Atlantic Richfield Company v. State of California, et al., Case No. BC380474 (2010), Superior Court of the State of California, County of Los Angeles (represented multiple state agencies; after prevailing on key motions, the case was successfully settled on the third day of a scheduled five-week jury trial)

City of Rialto v. U.S. Dept. of Defense, U.S. District Court, C.D. California, May 25, 2007, 492 F. Supp. 2d 1193, 2007 WL 1805329; City of Rialto v. U.S. Dept. of Defense, U.S. Court of Appeals, 9th Circuit, Apr. 17, 2008, 274 Fed. Appx. 515, 2008 WL 1776571 (represented County of San Bernardino and number of other defendants; case dismissed when court found plaintiff failed to comply with the NCP)

Board of County Comm’rs of La Plata County, Colorado v. Brown Group Retail, C.A. 08-CV-00855 (D. Colo. 2008) (provided expert testimony on reasonableness of remediation costs)

Brown Group v. Hathaway et al., C.A. No. 01-AJ-0917 (D. Colo. 2001) (represented potentially responsible party (PRP) in CERCLA cost recovery, contribution, and common law tort action)

U.S. v. IBM Corp., C.A. No. 01-B-1017 (D. Colo. 2001) (represented PRP in CERCLA cost recovery 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)

Colorado School of Mines v. Teck Corp., C.A. No. 99-M-1310 (D. Colo. 1999) (represented assignor of claimant in CERCLA cost recovery and common law tort action)

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

Representative Experience

  • Represent a large California municipal water provider in negotiating and implementing remedial measures and in settling cost recovery claims to restore beneficial uses of groundwater at and upgradient of numerous water supply wellfields impacted or threatened by numerous plumes of emerging and other contaminants.
  • Represent two California water boards in connection with the Leviathan Mine Superfund Site – an inactive sulphur mine discharging acid mine drainage and other mine waste into surface water and groundwater.  A firm attorney represented these and other state agencies in complex litigation concerning liability for past and future site costs.  After prevailing on key motions, the case was successfully settled on the third day of a scheduled five-week jury trial.  Currently, the Firm is advising these clients on site remediation issues and anticipated consent decree negotiations with a private party and the U.S. EPA.
  • Represent a county in California on remediation of groundwater perchlorate plumes emanating from and near a large municipal landfill following more than ten years of multiparty complex litigation in federal Court concerning the Rocket, Flares and Fireworks Superfund Site and other nearby sources.  
  • Represent a developer of a 1,000+-acre commercial mixed-use development in Colorado responding to an asserted stormwater notice of violation and developing a comprehensive stormwater permitting and compliance strategy for ongoing development at the site.
  • Represented a developer in amending an early 1990’s consent agreement with the state department of public health and environmental and negotiating a cleanup approach to allow high-rise mixed-use redevelopment on a 60-acre riverfront parcel in central Denver and in reaching settlement with a principal responsible party for cost contribution and continue to advise the client with regard to ongoing compliance and cleanup requirements..
  • Represent a municipal county airport in California in responding to a state cleanup and abatement order, implementing a response action to address a large plume of 1,2,3-TCP and other contaminants consistent with the national contingency plan (NCP) and pursuing cost recovery.
  • Represent airports across the country in developing strategies for mitigating potential PFAS liability exposure, including measures to address current and future releases to the environment.
  • Represent multiple parties in disputes regarding historical LUST contamination, cleanup, and cost recovery.
  • Represent a town in Colorado in negotiating and implementing remedial measures and funding for same as part of a Voluntary Cleanup Program to address elevated concentrations of lead in soil due to historic mining activity. 
  • Represented a Utah municipality in negotiation of a settlement agreement and administrative order on consent with the U.S. Environmental Protection Agency to conduct an engineering evaluation/cost analysis and removal action to address historical mining impacts, and currently represent the client in continuing coordination with U.S. EPA in watershed-wide remedial efforts.
  • Advise state attorney general’s office and regulatory agency regarding cost recovery for post closure costs at four permitted RCRA hazardous waste facilities, following bankruptcy of the landfill operator.
  • Represent a nonprofit corporation that owns a contaminated parcel of property near Denver, Colorado, that has undertaken a more than 20-year effort to remediate site conditions associated with its former use as a mining experimental facility and to implement a redevelopment strategy.  We have assisted this client in issues under CERCLA, Toxic Substances Control Act (TSCA), radioactive materials licensing, the state Voluntary Cleanup Act, the Clean Water Act, and other authorities.
  • Represented the master developer of portion of a military 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 ordinance contamination encountered during a phased development process.
  • Represented an environmental consulting firm in negotiating a fixed-price remediation agreement, an associated cost cap, and a pollution legal liability policy for remediation and redevelopment of a former defense manufacturing site under a RCRA order.
  • Assisted a nonprofit corporation in negotiating a consent order for the closure of a construction and demolition landfill and purchasing the site to protect views from an historic property.
  • Represented a recycling company in responding to a 104(e) information request and associated negotiations under CERCLA related to former operations on a mining site listed on the National Priorities List.  No enforcement action was taken.
  • 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.
  • Firm attorney represented the owner of a legacy bulk chemical liquid storage facility regarding compliance with a Regional Water Quality Control Board cleanup order for investigation and remediation of soil, groundwater, and marine sediment contamination and negotiation of a lease buyout and liability transfer to the Port of Los Angeles for redevelopment of the site as a park and walking trails.
  • Firm attorney assisted a private responsible party in implementation of 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.

See Brownfields for other project examples.