Experience

Energy

Our firm’s combined experience representing energy companies spans decades, and includes oil and gas exploration and production, petroleum refining, pipelines, and power producers. We are regularly engaged in compliance auditing and counseling, transactional due diligence, permitting, regulatory development, and state and federal enforcement representation for our refinery clients. The subject matters spans across the areas of air quality control, water quality control, solid and hazardous waste management and remediation, and toxic substances control.

Much of our energy industry work has been in the area of petroleum refining. In the last several years our work has routinely involved eight (8) petroleum refineries in different locations across the country. We also have performed legal services for a number of other refiners on a non-routine basis.

Oil and Gas Exploration and Production

The firm has been engaged in counseling and representation in the energy exploration and production area, including compliance, regulatory enforcement, and transactional matters, as well as for midstream operators and equity investors in the industry.

Recent experience includes:

• Successfully defending natural gas producer in lawsuit by neighboring landowner alleging groundwater contamination from historic gas well operation.
• Leading a post-acquisition Texas Clean Air Act audit of exploration and production assets under the Texas Environmental, Health and Safety Audit Privilege Act (Audit Act) for a Texas energy company.
• Assisting exploration and production clients with regulatory inspections and enforcement actions by the Texas Railroad Commission and the Texas Commission on Environmental Quality as well as matters associated with groundwater contamination and remediation of hydrocarbon-contaminated soils from crude oil related operations under the jurisdiction of the Texas Railroad Commission.
• Working with an exploration and production company and its legal counsel on development of boilerplate provisions for purchase and sale contracts covering natural gas assets.
• Counseling client regarding remediation pursuant to Texas Railroad Commission Voluntary Cleanup Program at +1,000-acre site.
• Assisting exploration and production company in addressing issues from planned drilling in urban area with known existing groundwater contamination.
• Developing and coordinating overall environmental strategy for foundational Eagle Ford Shale upstream and midstream operations, including local government relations involving Groundwater Conservation Districts, air permitting, water availability, wastewater disposal, NORM management, spill reporting and landfilling.
• Leading midstream clients through Audit Act audits of over 300 regulated facilities, including several very large gas processing plants, focusing on NSR, NSPS, NESHAP, SIP and stormwater requirements.
• Counseling senior management at several midstream companies on Barnett Shale TCEQ-initiated, helicopter-based site inspections.
• Negotiating of all environmental aspects of equity acquisitions, divestitures and financings, including resolution of potential company management liabilities, for  upstream properties impacted by historical spills of wastes regulated by the Texas Railroad Commission

Other Regulatory Enforcement and Permitting Experience

The enforcement–related activities of our attorneys have involved numerous state environmental agencies and attorneys general, as well as the headquarters and regional offices of the U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice.

In the last several years, we have represented refiners in negotiations with EPA and the Department of Justice pursuant to EPA’s National Petroleum Refinery Initiative (“NPRI”). Those matters have involved all of the so-called “marquee” issues involving significant refinery processes including fluidized catalytic cracking units, heaters and boilers, flares, sulfur recovery units, fuel gas combustions devices, and associated regulatory programs under NSR/PSD, NSPS, LDAR and BWON. These matters often address not only related state claims but may include other federal claims, such as CERCLA/EPCRA and RMP under Section 112(r) of the Clean Air Act.

We also have had extensive experience with the RCRA corrective action program. Joe Guida represented the Trustee in Bankruptcy of Hudson Oil Company in Cushing, Oklahoma in the first EPA judicial action in the nation under the corrective action authorities of RCRA §3008(h) in the mid–1980s. As indicated below, we are presently working with multiple refinery clients relative to RCRA corrective action at both state and federal levels.

We have been engaged in substantial work under the Clean Air Act and state counterparts. This work includes counsel on Title V permitting matters and certifications, major and minor source construction permits and compliance matters, NSPS, and NESHAPs. We also have had assisted clients with matters arising under refinery fuels programs, including voluntary self–disclosures of non–compliance with 40 C.F.R. Part 80 requirements, fuels registration issues, agency enforcement matters, fuels testing and laboratory audits, corrective action recommendations, and invalid RINs under the RFS2 program. We also have worked on economic hardship petitions under the fuels regulations, including a compliance extension under the RFS2 program.

Other Energy Industry Experience

Below are summaries of other matters in which we have represented energy companies in the last several years:

• We serve as national environmental counsel to a large independent provider of well stimulation services for the oil and gas industry to enhance recovery rates from wells drilled in shale and other unconventional reservoirs. The client’s vertically integrated business includes, among other things, manufacturing plants to produce components such as high-pressure pumps and pumping units, and operation of proprietary proppant sources including sand mines, sand processing facilities, and sand resin coating facilities. Our work for this client includes environmental compliance counseling, permitting in contested and non-contested cases, defense of environmental agency enforcement actions, environmental compliance auditing, and coordination of environmental legal services nationwide.

For this client, we recently obtained a complete dismissal of a Texas Environmental Qualify enforcement action that involved alleged violations of the Texas Clean Air Act, alleged solid waste violations under the Texas Solid Waste Disposal Act, alleged violations of the Texas Pollutant Discharge Elimination System under the Texas Clean Water Act, and alleged Texas water rights violations.

• We have provided our clients with on-going environmental counseling on project development, liability, permitting, and compliance issues under the state and federal environmental law in multiple states in different geographic regions. Some of this work involves refined-product terminals, asphalt terminals and numerous retail service stations and convenience stores, a fleet of crude oil and refined product truck transports, and wholesale petroleum products distributors.
• We have represented clients in connection with negotiations on, and compliance with, administrative consent orders pursuant to the federal Resource Conservation and Recovery Act's corrective action program. The corrective action work entails extensive investigation and remediation of former solid waste management units at petroleum refineries in different parts of the country.
• In one EPA RCRA administrative enforcement case, EPA alleged 59 violations of RCRA associated with refinery operation of its storm water basin and sought a proposed civil penalty of almost $7 million. On behalf of the client, we filed a motion to dismiss EPA’s complaint on multiple grounds. In the face of that motion, EPA moved to amend its complaint by, among other things, dropping 50 of the 59 alleged RCRA violations and replacing the proposed civil penalty with an unspecified penalty amount. Ultimately, EPA and the refinery entered into a Consent Agreement to resolve the matter for a penalty payment in the high six figures. The settlement also required certain remedial actions in the area of the facility’s storm water basin.
• The firm negotiated a three-way Consent Order with EPA and a state to resolve alleged RCRA violations relative to operation of a facility surface impoundments. We assisted in negotiation of a consent order that satisfactorily resolved the civil penalty assessment and entailed the design and construction of a state-of-the-art zero-discharge wastewater treatment plant.
• We negotiated a Compliance Order with a major municipal authority to resolve alleged violations of air permits and regulations at a petroleum products terminal. Under the Consent Order, the firm’s client undertook a novel supplemental environmental project in which it will accept and dispose of gasoline-powered lawnmowers of low income residents in the neighborhood of the client’s facility, and will provide replacement electric-powered lawnmowers at no charge to the residents.
• We have experience with compliance issues involving coker furnace emissions, acid gas flaring, and wastewater treatment systems and with defense of both state and federal air enforcement actions.
• We recently have been assisting a client in challenging an alleged “high priority violation” in connection with a non-reportable emission during a leak repair under the LDAR program.
• We have had long-time, extensive involvement in groundwater contamination issues, including investigation, monitoring, remediation, and free product/dissolved phase hydrocarbon recovery. Recently, we helped negotiate a required plan for the construction of a slurry wall at one facility to intercept impacted groundwater and prevent it from moving off-site.
• We have counseled clients on deconstructing agency civil penalty assessments, including application of EPA’s various civil penalty policies and economic benefit models.
• We have negotiated RCRA Part B, interim status closure, and post-closure permits, including provisions for RCRA corrective action measures, such as RCRA facility investigations and interim measures. We also assist clients on compliance with RCRA financial assurance requirements.
• We have planned and helped implement numerous environmental audits for clients in all media. These have included refinery air (e.g., new source review, NSPS, NESHAPS (including BWON)), water discharge permitting, and waste management (on and off-site).
• We have negotiated state court consent decrees involving wastewater discharge issues, hazardous waste management, and alleged air quality permitting and program requirements.
• We prepared comments for an ad hoc coalition of small refiners relative to the NSPS Subpart Ja rulemaking, the proposed Alternative Fuel Standard under the Bush Administration “Twenty in Ten” program, and the Renewable Fuel Standard #2 program promulgated in connection with the Energy Independence and Security Act of 2007.
• We prepared joint comments on behalf of an ad hoc group of 8 small entity representatives in the petroleum refining industry in connection with EPA’s Small Business Advocacy Review Panel on EPA’s planned risk and technology review/NSPS rulemakings for the petroleum refining sector.
• We have worked with clients in connection with state and federal regulatory inspections, including NEIC, and developed protocols and policies for handling regulatory inspections.
• We have worked on due diligence for a number of acquisition and sale deals, and also have assisted on post-acquisition permit transfer matters. We also have assisted with drafting the environmental covenants and indemnities of the deal documents and have worked with clients on creative approaches to liability/risk allocation between buyer and seller.
• We have assisted our clients in negotiating RCRA corrective action work plans for remediation of waste management units and groundwater and the authorization of CAMUs.
• We have significant experience with NPDES and state-equivalent water quality permitting, including compliance with storm water and POTW pre-treatment programs. We assisted one of our clients in obtaining many favorable changes to its draft NPDES permit relative to extremely stringent water-quality based effluent limitations for selenium and chloride. We also have defended clients in NPDES and state-equivalent direct and indirect discharge enforcement actions.
• We have assisted in preparation and drafting of environmental management systems manuals.
• We have significant experience with EPCRA release reporting and EPCRA §311, §312, and §313 reporting as well as resolution of related enforcement actions.
• We have handled EPA enforcement matters relative to TSCA inventory and CERCLA release reporting rules.