HOME |OUR PRACTICE | ENVIRONMENTAL
Regulatory and Legislative
Fognani & Faught benefits from a nationally and internationally recognized environmental law practice. The Firm's attorneys have extensive experience in all aspects of environmental law, including matters under the Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), the Uranium Mill Tailings Radiation Control Act (UMTRCA), the Oil Pollution Act, the National Environmental Policy Act (NEPA), the Hazardous Materials Transportation Act, the Atomic Energy Act and the Endangered Species Act, among others, including the state counterparts to these various federal statutes. The Firm has particular expertise in air, water, and solid and hazardous waste matters and cleanup issues, including major Superfund projects and related litigation in numerous federal and state jurisdictions.
By working closely with our clients' executive and management teams, we are able to develop and implement strategies to solve complex environmental matters in an efficient and cost-effective manner. To help us in this work, the Firm has amassed an extensive collection of research, agency background information, legal briefs, motions and memoranda.
Fognani & Faught represents its clients in environmental matters at all levels of government and in multiple jurisdictions. The Firm's lawyers have participated extensively in federal and state rulemakings, including providing formal comments on various United States Environmental Protection Agency regulatory proposals.
We have successfully guided our clients through complex permitting processes, including all phases of major federal and state permits and NEPA environmental reviews. For example, lawyers of the Firm have worked for years in the metals/smelting and refining industry and have handled all facets of the permits process, administrative rulemakings and legal challenges by making the record in such cases and then successfully defending it. They have also helped obtain approval for clients and all the necessary state and federal permits for those approvals to build oil and gas pipelines. Passing through multiple states and counties and, most remarkably, crossing or going under stream and river crossings. Through our efforts, third party opposition groups' lawsuits to stop these projects have been defeated. In addition to environmental permitting, we advise our clients on complex compliance issues and, when necessary, we assist them in responding to notices of violation and enforcement actions. In particular, the Firm has worked with its clients in cleanup and/or related administrative proceedings and litigation involving oil spills, metals contamination, USTs, asbestos, NAPLs, petroleum and mining wastes, radioactive wastes, industrial solvents, PCBs and other materials and wastes.
When the need arises, Fognani & Faught aggressively represents its clients in court. We have extensive litigation experience on environmental issues in state and federal courts. The Firm has represented a diverse number of interests in CERCLA-related litigation, including mining, energy, oil and gas, municipalities and manufacturing entities throughout the country. We have worked on a number of highly visible litigated environmental and natural resources matters, including defense of natural resources damage cases, with pendent state law claims, e.g., State of Colorado v. Asarco Incorporated (natural resources damage action); United States v. Rockwell Int'l (defense of Rockwell International Corporation in the Rocky Flats Plant criminal and environmental investigation); United States v. Friedland (defense of board members and officers in the Summitville Mine Superfund CERCLA action); and CERCLA litigation involving Lowry Landfill, Casmalia Landfill, Tonnolli Landfill, CSMRI Superfund Site, San Mateo Superfund Site and many other sites, along with pursuit of third-party claims and insurance recovery.
We also have defended and prosecuted a number of citizen suits under federal environmental statutes and toxic tort actions in state courts, including, for example, the California toxic tort suit of In re Redlands, involving El Paso Natural Gas Company, among others, in Southern California; Wilson v. Amoco Corp. (RCRA citizen suit); and Upton v. USDOE, et al. The Firm also has challenged, on behalf of its clients, final environmental regulations in the United States Circuit Courts, including the District of Columbia Circuit. John Fognani successfully negotiated the resolution in Colorado of a $500 million penalty liability under Title V of the Clean Air Act for Vastar Resources.
The Firm has environmental litigators with substantial trial experience, as well as lawyers with extensive backgrounds in appellate advocacy. The Firm's environmental lawyers are familiar with the issues pertaining to CERCLA liability and its various defenses, apportionment, owner/operator liability, natural resources damages, cost recovery and contribution, steering committee work and multiple-party sites and actions. Many of the Firm's lawyers focus their activities on environmental practice areas, including environmental insurance coverage litigation. A number of the lawyers have substantial environmental experience in judicial and administrative proceedings, including citizen suits, enforcement actions, toxic tort actions and various state and federal district court and appellate court cases. In November 1990, John Faught had the privilege of arguing a case before the United States Supreme Court.
The Firm's attorneys have extensive litigation experience in the metals industry related to smelting and refining operations. For instance, John Fognani successfully litigated a series of federal appellate cases in the District of Columbia Circuit Court regarding the United States Environmental Protection Agency's regulatory definition of solid waste that have withstood the test of time and still benefit the smelting and refining industry. Our attorneys were involved in the defense of a class action related to the Globe smelter located just outside of Denver, Colorado. The litigation culminated in a six-week jury trial involving allegations related to the impacts from the smelting operations on the surrounding community. Through this litigation and representation of other clients, our attorneys have valuable knowledge and experience in the operations of a metals-refining facility and the potential issues that may result in litigation exposure on the part of the owner and operator of such a facility.
Brownfields Redevelopment
The Firm's Brownfields practice is unique. Unlike traditional Brownfields practices, which are primarily regulatory in nature, the Firm uses multifaceted approaches to achieve innovative solutions to Brownfields projects. For example, several of the Firm's attorneys were instrumental in establishing new industry standards by successfully utilizing cutting-edge legal and technical approaches to three Brownfields projects.
Examples include:
- Negotiated consent decrees with federal and state agencies
to identify and implement less costly alternatives for property
remediation in a manner consistent with community needs and environmental
quality concerns
- Employed novel theories to shift liability for property remediation
from the client to the appropriate party or parties
- Assisted clients in the use of non-corporate assets within
tax-free structures to accomplish property remediation
- Negotiated sophisticated regulatory solutions with federal,
state and municipal agencies to maximize redevelopment opportunities
For each Brownfields project, the Firm looks at all the available "tools" to determine which combination of ideas will best effectuate the goals and requirements of the client.
The Firm has represented clients throughout the United States in suits arising from alleged exposure to contaminated drinking water, benzene, lead, asbestos, radium, arsenic, cadmium and chromium. Among other things, the lawyers of the Firm have successfully mobilized and coordinated complex strategies with respect to government-enforcement actions, insurance recoveries and public and community relations.
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