Environmental

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Overview

Effectively negotiating one's path through the maze of permitting and compliance requirements in the field of environmental law is at once exhausting and rewarding for clients who wish to "do the right thing" for both their company and the environment. Our counsel is geared toward promoting careful and conscientious attention to environmental requirements as a means of protecting the reputation and social license of businesses while advancing the ultimate goal to ensure environmental protection and responsible uses of resources for the overall benefit of society.

Quality representation in this area of law requires considerably more than a detail-oriented command of the statutory and regulatory regimes that have proliferated like wildfire since the National Environmental Policy Act (NEPA) brought focus to the field in the early 1970s. It also requires a fundamental grasp of our so-called "federal system," in which the federal, state, local and Indian governments share an often interconnected responsibility, or delegated responsibility, for adopting and administering laws and regulations. Quality representation also requires an affinity for relationships, essential elements of which include the fostering of mutual respect and the conscious avoidance of a populist "we-they" paradigm. Fostering positive relations with client personnel, environmental regulators, governmental attorneys, technical consultants, non-governmental entities and the broader community is paramount, whether regulated economic activity is confined to one's back yard or is interstate or international in scope or setting.

Attorneys

Experience

Our Wide-Ranging Environmental Practice

Our attorneys have experience and perspective that extend back to the early days of environmental law and regulation, and we engage in a dogged pursuit to stay abreast of ongoing developments and the regulatory "tweaking" that often accompanies shifts in administrations. We have handled significant litigation, permitting, strategic risk management, and compliance issues under nearly all of the federal and New Mexico environmental laws now facing industry and individuals, as well as environmental regulations and ordinances of local and Indian origins.

We also have assisted clients with NEPA processes, including but not limited to, "major federal action" and "federal handles" determinations, identification of and coordination with third-party consultants, preparation of scope of work and related documents, evaluation of applicability of categorical exclusions, environmental assessment versus environmental impact statement reviews, consideration of cumulative impacts, and fulfillment of public participation requirements. We assist clients in meeting all of the nuances of NEPA, and other statutes taken into account in the context of NEPA reviews, in the hopes of helping them avoid litigation challenges. We also litigate on behalf of clients when challenges are made, and we handle appeals.

Much of our environmental practice has been an outgrowth of our representation of natural resources companies, including those in oil, gas, mining, ranching and agriculture. Our attorneys have had lead responsibility in numerous matters concerning environmental regulation of natural resources development, both before agencies and in court. Our attorneys also have managed complex litigation or handled matters involving a broad range of other economic activity that includes manufacturing, high-tech research and development, and many other enterprises.

Another component of our practice involves the representation of banks, lenders, and developers, among other kinds of clients, in evaluating and contractually protecting against risks of environmental liabilities arising from commercial and private real estate transactions. One aspect of this representation involves coordinating with environmental consultants on Phase I, II and III environmental evaluations and Transaction Screens, as may be prudent or required under certain circumstances. Another involves advising clients about opportunities to take advantage of the Brownfields and Voluntary Remediation programs at the federal and state levels, respectively, as well as assisting with the negotiation and drafting of covenants not to sue and other preventative measures. A further aspect involves drafting broad indemnification provisions and other similar risk allocation devices, as well as handling insurance coverage issues.

Federal

  • Clean Water Act (CWA) – Including Section 402 National Pollution Detection and Elimination System (NPDES) permitting, Section 404 Dredge and Fill permitting, storm water permits, Triennial Review processes, citizen suits, compliance and enforcement, wetlands, and jurisdictional waters of the U.S., etc.

  • Clean Air Act (CAA) – including construction and operations permitting, attainment issues, regional haze proceedings, emerging issues relating to greenhouse gasses and climate change, and regulatory developments within the Environmental Protection Agency (EPA) and Congress.

  • Safe Drinking Water Act (SDWA) – including permitting, compliance with Maximum Contaminant Limits and other standards, handling underground injection control (UIC) program matters, etc.

  • National Environmental Policy Act (NEPA) – including coordination on environmental assessments (EAs), findings of no significant impacts (FONSIs), environmental impact statements (EIS), categorical exclusions (CEs), NEPA contractor agreements, scoping meetings, public hearings, and litigation in the form of NEPA challenges that sometimes are brought against clients by non-governmental organizations (NGOs), as well as appeals.

  • Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA) and other similar wildlife, avian protection and permitted takings regimes, including civil and criminal enforcement actions thereunder as well as T&E listing processes, coordinating on biological assessments, and handling public hearings, litigation and appeals.

  • National Historic Preservation Act (NHPA), Archeological Resources Protection Act (ARPA), Native American Graves Protection and Repatriation Act (NAGPRA), Antiquities Act, as well as other federal and state cultural resources regimes – including listing and delisting processes, mitigation and compliance issues, "traditional cultural properties" designations, tribal consultations and sacred sites issues.

  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) – including 104(e) investigations, imminent and substantial endangerment orders and proceedings, contribution actions, remedial investigation/ feasibility study (RI/FS) processes, liability analyses for owners, generators, transporters and others, Superfund litigation, SARA reporting, Brownfields development, and general advice.

  • Resource Conservation Recovery Act (RCRA) – including its cradle-to-grave hazardous waste handling and disposal permitting regime, and related enforcement actions, litigation and appeals.

  • Toxic Substances Control Act (TSCA) – including permitting, reporting, disposal and enforcement issues.

  • Atomic Energy Act (AEA) and Uranium Mill Tailings Radiation Control Act (UMTRCA) – including Nuclear Regulatory Commission (NRC) facilities siting and permitting, and general advice regarding the handling, storage and disposal of source material, special nuclear material, and Section 11(e)(2) byproduct material and wastes.

  • Surface Mining Control and Reclamation Act (SMCRA) – including reclamation program permitting, compliance and enforcement, and dealings with the Office of Surface Mining (OSM) at federally regulated coal operations on federal and Indian lands, and the Coal Bureau of the New Mexico Mining and Minerals Division (MMD).

State

  • Water Quality Act (WQA) – including ground water discharge plan permitting, application of water quality standards, abatement plan processes, closure issues, rulemakings, interpretations of jurisdiction, and proceedings before the Water Quality Control Commission (WQCC) and the New Mexico Environment Department (NMED), as well as litigation and appeals.

  • Disposition of produced water pursuant to NMOCD rules.

  • Solid and Hazardous Waste Acts (SWA and HWA) in New Mexico – including disposal facility permitting, enforcement proceedings, etc.

  • Surface Water Bureau (SWB) programs at NMED - including federally delegated programs under the Clean Water Act.

  • Underground Storage Tank (UST) Bureau and its associated regulatory program.

  • Environmental Improvement Board (EIB) proceedings and regulations.

  • Radioactive Materials Licensing.

  • NMOCD Abatement Plans for releases and Voluntary Remediation programs at NMED

Local and Indian

  • City and county ordinance and land use regimes statewide.

  • Tribal and Pueblo environmental regimes within Indian Country in New Mexico and elsewhere.

Representative Matters

  • We represent a national laboratory in appealing an adverse permitting decision arising under the Resource Conservation and Recovery Act (RCRA). At the initial appeal level the permitting decision was reversed, and the matter is ongoing.

  • Represented a major railroad company on NEPA issues and obtaining Clean Water Act permits.

  • Mount Taylor Traditional Cultural Property Designation: Our lawyers represent a major resources development company and a group of mineral estate owners in a judicial challenge to a highly controversial State of New Mexico designation of a 500,000-plus acre area encompassing Mount Taylor and surrounding environs—located northeast of Grants, New Mexico—as a Traditional Cultural Property ("TCP"). The designation impacts or has the potential to impact companies and individuals owning lands, interests in land or development rights inside and near the designated TCP area. The challenge asserts that the State violated applicable constitutional and statutory provisions, regulations and procedures in designating the TCP. The challenge was successful before the state district court, and is now pending before the New Mexico Court of Appeals, Rayellen Resources, Inc., et al. v. New Mexico Cultural Properties Review Committee, et al., Cause No. CV-2009-812S (Fifth Judicial District Court 2011), on appeal, New Mexico Court of Appeals Cause No. 31,064.

  • Barrick Gold Corporation's Cortez Hills Mine and Horse Canyon/Cortez Unified Exploration Project:  We represent Barrick Cortez, Inc. in relation to present and proposed operations in and near the Crescent Valley, Nevada.  We are providing counsel regarding tribal consultation and cultural resources management compliance relating to mineral resources development and exploration projects, including consideration of National Historic Preservation Act, Native American Graves Protection and Repatriation Act, and related statutes, regulations and Executive Orders.

  • Represented multiple clients in permitting and environmental compliance efforts regarding developments on federal public lands, including National Environmental Policy Act, Section 106 of the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, the Endangered Species Act, and related regulatory schemes.

  • Tyrone Copper Mine Closure Permit Adjudication and Settlement.  Phoenix-based Freeport McMoRan Copper & Gold Corporation faced untenable closure expectations including significant reclamation bond requirements imposed by the New Mexico Environment Department based on the Department's expansive interpretation of the ground water program under the Water Quality Act. We represented the mine, along with Phoenix counsel, in complex adjudicatory hearings before the Department and its oversight agency, the Water Quality Control Commission, and ultimately obtained a ruling by the New Mexico Court of Appeals that the Department was arbitrary and capricious in requiring that ground water quality standards be met throughout the entire mine permit area.  On remand, we represented the company with the help of technical experts in a 21-day hearing before the Commission and subsequently (along with co-counsel) negotiated with the Department and an interested NGO in achieving a complex, multi-year settlement involving both Water Quality and Mining Act issues allowing for a long-term stay of a second appeal in the Court of Appeals.

  • Navajo Mine Operations and Permitting Matters.  BHP Navajo Coal Company (BNCC), a subsidiary of Melbourne-based BHP Billiton, sought to extend its coal mine operations under a mining lease of tribal trust lands on the Navajo Reservation.  We represent BNCC in a wide range of permitting and environmental compliance matters including NEPA, cultural resources compliance, Endangered Species Act compliance, Clean Water Act, and Surface Mining Control and Reclamation Act.  This representation also included negotiation of agreements with the Navajo Nation members who hold traditional use rights in the area.

  • Peabody Mine Impoundment and Triennial Review Proceedings.  St. Louis-based Peabody Energy Company and its coal mining subsidiaries with operations in New Mexico faced a directive from the Environment Department to the Mining and Minerals Division suggesting that MMD's Coal Bureau impose certain surface water quality standards based on hypothetical aquatic life and human recreational uses of man-made mine impoundments that are slated for a post-mine land use of livestock watering.  We initially challenged the directive through an administrative appeal and sought to negotiate a resolution of the issues with the Department and an interested NGO, then pursued a regulatory change by the Water Quality Control Commission under a Clean Water Act-mandated Triennial Review proceeding leading to helpful findings of fact that have set the stage favorably for further negotiations between Peabody and the Department.

  • Mount Taylor Mine Environmental and Reclamation Permitting. California-based General Atomics and its uranium mining subsidiary, Rio Grande Resources Corporation (RGRC), are in the early stages of preparing for further uranium mining operations at Mount Taylor Mine near Grants, New Mexico.  The mine, which was one of the largest producers of uranium worldwide from the 1970s into the 1990s, has been on standby since approximately 1993 and is now poised to take advantage of improving market conditions for uranium.  In addition to our decades-old representation of the mine, more recently we have assisted RGRC in successfully obtaining a Water Quality Act discharge permit for a pilot water purification system to address uranium levels in groundwater, and in ongoing standby permit proceedings under the New Mexico Mining Act's reclamation permitting regime.

  • We are co-counsel for a major oil company in several on-going toxic tort cases consisting of several hundred claimants asserting personal injury and property damages involving oil field production near a subdivision on the western edge of Hobbs, New Mexico.  The legal team tried the claims of nine of the Plaintiffs in the fall of 2007 and successfully obtained a complete defense verdict in state court in Lovington, New Mexico.  The case is currently briefed on appeal and scheduled for oral argument in the New Mexico Court of Appeals.  See Acosta, et al. v. Shell Oil Company, et al., Lea County Cause No. CV-99-509.

  • We successfully obtained summary judgment dismissing a client from a federal suit brought in Colorado under the Comprehensive Environmental Response, Compensation and Liability Act seeking to recover costs for remediation of surface and groundwater contamination at a heap leach gold mining site.  See United States v. Robert M. Friedland, et al., United States District Court for the District of Colorado, Civil Action No. 96-N-1213.

  • We served as co-counsel to Newmont (USA) Limited and subsidiaries in connection with reclamation requirements under the New Mexico Mining Act, in reclamation-related litigation and, along with Colorado counsel, in responding to CERCLA Section 104(e) inquiries from the U.S. Environmental Protection Agency (EPA) relating to uranium sites in New Mexico leased to other mining companies by Santa Fe Pacific Gold Corporation and Santa Fe Pacific Mining.

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