Combining experience and technical knowledge, Nelson Mullins' environmental lawyers help clients address local, state, and federal environmental issues, helping them find the right answer to complex environmental problems. Nelson Mullins' attorneys use their experience to understand the technical aspects of each situation and to formulate a creative and practical resolution. We recognize that achieving and maintaining compliance with environmental regulations can result in significant savings for our clients.
Nelson Mullins puts clients first. Our approach to providing environmental advice to clients is a partnership. Partnering with our clients results in an “us” mentality and a mutual trust. To this end, we believe that the first step in representing a client is to listen and develop a deep understanding of each client's business and needs. This allows us to work together to achieve creative, cost-effective solutions to each client's challenges and business goals. Our experience in the environmental arena, partnered with the broader resources and experiences of the firm, provides an invaluable wealth of knowledge to assist our clients in finding strategic and creative legal and business solutions to environmental challenges and issues faced by our clients.
We also make it a priority to be active participants and maintain leadership roles in industry and professional groups, such as the American Bar Association’s Sections on Energy and the Environment, Business Law (Environmental Committee), Litigation (Environmental Committee), and Administrative Law and Regulatory Practice and the American College of Environmental Lawyers. We are also active in community and business groups, such as state chambers of commerce and industry sector groups. Active involvement in such groups provides a network of contacts across the United States that we can utilize when needed, provides opportunity to participate in policymaking with regulatory agencies, and helps us stay informed about new initiatives in regulation, enforcement and litigation and new community/public interest group concerns. Our involvement helps facilitate making new contacts and building on-going relationships with local, state, and federal regulators.
Our services include:
- Regulatory and Compliance Counseling and Permitting: The Nelson Mullins' environmental attorneys believe that the key to compliance counseling is a deep knowledge and understanding of environmental regulations. We believe that preventing potential violations in the first place is generally the best model for business operations. Through audits, health and safety compliance, risk-management planning, and simple day-to-day advice, our attorneys help guide clients through the standards that apply to their businesses and help clients understand how those standards are interpreted and applied by environmental agencies. To this end, we monitor agencies’ development and application of policies and enforcement initiatives. Our strategies and experience are directed at preventing problems, finding creative solutions, and creating cost savings for the client.
Our attorneys have represented clients on regulatory matters under all of the major federal environmental statutes and their state counterparts including:
- Clean Air Act
- Resource Conservation and Recovery Act
- Underground Storage Tank Programs
- Dry Cleaning Facility Restoration Trust Fund Programs
- Emergency Planning and Community Right to Know Act
- Spill Reporting (multiple statutes)
- Toxic Substances Control Act
- Federal Insecticide Fungicide and Rodenticide Act
- National Environmental Policy Act
- Comprehensive Environmental Response Compensation and Liability Act
- Solid Waste Management Regulatory Programs
- Our attorneys have represented clients on regulatory matters under all of the major federal environmental statutes and their state counterparts including:
- Enforcement: Nelson Mullins' attorneys have represented clients through the range of enforcement possibilities in the environmental arena—from letters of inspection deficiencies, notices of violation, conducting compliance conferences, negotiating settlement agreements and compliance agreements to litigation. We have helped clients with voluntary self-disclosure to state and federal agencies, as well as with negotiating with agencies for reduced penalties and alternatives to penalties that enhance compliance and environmental protection. And when a satisfactory result could not be negotiated, we have represented clients through Administrative Law Court hearings, civil and criminal proceedings in court, and subsequent appeals.
- Emergency and Disaster Response: We have helped guide clients through a number of emergency response situations including mass exposure and evacuations, emergency recalls, and the myriad of enforcement issues that arise in such situations. In these situations, our litigation and enforcement experience is essential, and allows us to recognize and consider the impacts that each and every decision and action undertaken in an emergency response situation can have on future lawsuits and enforcement actions. In light of the potential for future lawsuits, we focus on providing litigation strategy, the preservation and marshalling of documents and other evidence, early claim settlements and advice on dealing with media and the press, all of which are critical, even in the earliest stages of an emergency response.
- Workplace Exposure and Indoor Air Quality: Our attorneys have advised and represented clients in situations involving workplace exposure and indoor workplace air quality issues, as well as situations involving residential air quality. We have evaluated potential liabilities and advised clients on steps that they can take to reduce potential air quality issues in situations involving mold, asbestos, radon, lead, vapor intrusion of contaminants with permissible exposure limits, and virtually all workplace exposures to chemicals with regulatory limits.
- Litigation: Nelson Mullins joins regulatory know-how with courtroom savvy for a formidable combination in litigation. Although ready to represent our clients in court, our attorneys also recognize that effective litigation defense necessarily requires us to be attuned to subtle issues and opportunities for early resolution, where such a resolution best serves our client. Our environmental litigation experience includes the following:
- Toxic Tort/Property Devaluation
- Administrative Appeals
- Regulatory Challenges
- Property Rights
- Citizen Suits
- Mass Tort/Class Action
- Corporate and Real Estate Transactions: Our attorneys are experienced in helping real estate and business clients navigate the due diligence and regulatory review required to minimize the risks and take advantage of protections against environmental liability in real estate transactions, mergers and acquisitions, asset sales, and other business transactions. Our team’s regulatory and litigation experience gives our clients the benefit of a practical approach aimed at quantifying and minimizing unacceptable risks of liability.
To reduce the risk of environmental liability, our attorneys draft environmental provisions for purchase and sale agreements and regularly review Phase I Environmental Site Assessments ("Phase I's") for compliance with federal and state standards. We also help our clients interpret the results of Phase I's and other environmental reports, and we use the results to evaluate the need for any sampling and testing ("Phase II's"), the impact of potential liabilities on the financial aspects of the deal, and the ways to limit those liabilities. Based on our longstanding experience, we are thoroughly familiar with the consultants practicing in this arena and are often tasked with the selection and oversight of such consultants.
When environmental concerns do exist, we negotiate contracts and terms for brownfield redevelopment and voluntary clean-up contracts ("VCCs") and, when needed, assist clients in negotiating the type and terms of environmental insurance. We also provide counseling on permitting, regulatory, and land use issues both before and after closing a purchase transaction.
We have been involved in redevelopment projects across the United States (including California, Georgia, Massachusetts, Mississippi, North Carolina, Ohio, and South Carolina), helping facilitate the beneficial use of contaminated property and redevelopment of urban areas, restore closed facilities to industrial operations, and facilitate the transfer of industrial facilities and other properties (including due diligence and the negotiation of consent agreements and other protections from future liabilities). In fact, our own offices in Atlanta, Georgia and Columbia, South Carolina are located on property impacted by contamination. Such continued use of contaminated property often brings much-needed new jobs to economically distressed communities, or at least helps curtail the loss of jobs in such areas.
- Sustainable Development Evaluation and Planning: In today's business world where sustainable development has often become a significant priority, we are able to capitalize upon our experience in this arena to help clients develop sustainable development practices that still accomplish our clients' business needs, while also helping them realize the benefits that can be associated with such approaches through community relations, cost savings, certifications, grants and tax credits, and broader business partnerships.
- Land Use and Development: We advise and assist clients with respect to zoning, variances, direct challenges and appeals of land use controls in order to help clients achieve the best use of their land.
- Government Relations: Nelson Mullins attorneys are often intricately involved in the development and implementation of policies, laws, and regulations, both at the state level and the federal level. Our attorneys work closely with the business community and industry groups in policy development, whether on our own or through such organizations as the Air and Waste Management Association, National Solid Waste Management Association, American Coal Ash Association, Environmental Law Institute, national or state trade associations or more state-specific groups such as state and local chambers of commerce. We have participated in numerous stakeholder or working groups (often at the behest of the agency) created by the agency to help in the development of regulations and amendments, have prepared and submitted written comments on draft, proposed, and final regulations and rulemakings, and have represented clients and industry groups in a variety of public hearings as well as challenges to final environmental rules (including challenge in the D.C. Circuit Court of Appeals. Further the Firm's professionals, in particular those associated with the Firm's Washington, D.C. office, regularly interact with the members of the House Committee on Energy & Commerce and the Senate Committee on Environment & Public Works and maintain high-level relationships within the Executive Branch, providing exceptional resources at the federal level.
Some of our team’s significant environmental experience includes the following:
Regulatory and Compliance
- Air Quality/Climate Change:
- Handle EPA information requests under Section 114 of the Clean Air Act and subsequent New Source Review enforcement in matters, including matters involving wood products companies, chemical manufacturers, and major utilities.
- Guide demolition and maintenance efforts involving the disturbance, removal, and/or disposal of asbestos, including local, state, and federal requirements.
- Handle permitting, compliance counseling, and defense of enforcement actions for multi-faceted stationary sources subject to provisions of the Clean Air Act—including those subject to Prevention of Significant Deterioration (“PSD”) requirements, non-attainment requirements, National Emission Standards for Hazardous Air Pollutants (“NESHAP”) provisions, New Source Performance Standards (“NSPS”) requirements, Title V operating permit requirements, and other stationary source state permitting requirements derived from State Implementation Plans (“SIPs”).
- Obtain and defend all types of air permits for major and minor sources of air pollutants for most industrial categories.
- Obtained the first-ever flexible air permit (plant-wide applicability limit permit) based on an allowable emission level. This became a model for subsequent EPA proposed regulatory changes.
- Handled permitting and related negotiations at the state and federal level, ranging from the siting and permitting of manufacturing facilities and utilities to the development of residential and mixed use projects, including projects involving cultural and historical resources and endangered species concerns in addition to more traditional wetland requirements.
- Successfully settled criminal allegations and navigated a mixed-use development project through the U.S. Army Corps of Engineer and Department of Justice's enforcement process and the federal and state permitting processes.
- Successfully resolved Clean Water Act lawsuit filed by the United States Department of Justice in relation to the train derailment tragedy that occurred in Graniteville, SC.
- Successfully negotiated with a state Department of Health and Environmental Control and a municipal Publically Owned Treatment Works (“POTW”) concerning the discharge of process wastewater for the expansion of a large manufacturing facility.
- Handled siting and permitting of a major distribution center involving wetlands permitting, along with cultural and historical resources management and endangered species permits and habitat management plans.
- Successfully negotiated with EPA the acceptance of voluntary disclosures without imposing penalties, after our environmental team handled strategic reporting of a series of violations in Form R reporting at one client’s facilities nationwide (such noncompliance resulting from an erroneous classification of certain materials).
- Solid Waste/RCRA
- Handle permitting, compliance, enforcement, transportation and citizen suit matters ranging from permitting and permit modifications to defense of multiple air, hazardous waste, and water actions to defense in complex litigation matters for hazardous waste facilities, incinerators, transporters, and fuel blenders, among others.
- RCRA waste generation determinations, generator storage, and treatment exemptions; land ban applicability; and implementation issues for industry groups ranging from hazardous waste recyclers, fuel blenders to chemical manufacturers, steel mills, hazardous waste combusting incinerators and cement kilns, and fertilizer manufacturers.
- Represent landfills (municipal solid waste disposal facilities) and other solid waste management and recycling facilities in the full range of permitting and compliance issues, which typically includes significant work at the local level in zoning and other local government issues as well as community relations.
- Negotiated the first-ever completion determination for a RCRA corrective action order from EPA Region I.
- Defended recycling exemptions for a recycling center under its RCRA permit.
- Reviewed and developed comments on the revised definition of “solid waste” for materials that were being recycled.
- Successfully defended and resolved a number of RCRA enforcement actions, including several in which the matter was ultimately resolved without the imposition of penalties (in some instances due to self-reporting).
- Handled permitting and regulatory compliance for the first secondary lead smelter permitted in the United States in over 20 years.
- Other Regulatory Matters
- Assist clients in completing environmental compliance audits, including audits that encompass numerous facilities and multiple media.
- Represent chemical manufacturers and importers in complying with TSCA.
- Defend multiple air, hazardous waste, and water actions against hazardous waste incinerator and fuel blenders.
- Handle registration and labeling of pesticides and devices, including the registration of pesticide-producing establishments, under FIFRA.
- Handled compliance and defense in Tier II and Form R reporting matters, including negotiation of settlements in complex matters that can involve multi-year violations across a number of facilities or result from specific enforcement initiatives (ammonia and formaldehyde). In one instance in particular, our attorneys, through strategic planning and reporting, were recently able to avoid the imposition of penalties by EPA in a matter involving a series of violations, due to an erroneous classification of certain materials, related to Form R reporting for a client with facilities nationwide.
- Represent statewide trade association on anti-trust and environmental regulatory matters.
- Represent a major insurer of hazardous material transporters in multiple states in responding to accidents involving spills, counseling on remediation of contamination, negotiating with state agencies, and defending insured transporter in subsequent litigation.
- Represent clients at Superfund (or state equivalent) sites including EPA-led sites in all EPA Regions, including for example sites located in Arizona, California, Florida, Georgia, Iowa, Kentucky, Massachusetts, Mississippi, Missouri, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Texas.
- Handle CERCLA allocation claims and litigation between potentially responsible parties, as well as claims against current and historic insurance providers.
- Handle numerous complex and multi-party toxic tort matters, as well as class action matters, ranging from claims of acute health effects to cancer clusters allegedly caused by long-term or routine facility emissions and discharges.
- Defended environmental justice cases, toxic tort claims, state and federal CERCLA litigation (brought by the government agency or PRP groups), devaluation of property claims, groundwater contamination cases, takings claims, and numerous other causes of action.
- Served as lead counsel for PRP groups consisting of multiple companies in complex multi-party Superfund sites.
- Assisted in bankruptcy matters involving environmental liabilities, ranging from analyzing the environmental liability portfolios to serving as special environmental counsel representing a manufacturing client in bankruptcy reorganization.
- Served as counsel in a major review, consolidation, and strategic planning over a five to seven year period for a major owner of contaminated and potentially contaminated properties across the United States, which included the resolution of Superfund liability for over 20 sites.
- Defended a statewide class action alleging property devaluation claims for leaking underground storage tanks associated with the historical operations of a major oil company.
- Defended multi-party toxic tort and CERCLA citizens’ suits in the Northeast and Southeast for a major telecommunications client.
- Served as national counsel in substance-specific multi-case and/or class-action litigation involving exposure to such substances as benzene, chromium, lead, chlorinated compounds, asbestos, and silica.
Business and Real Estate Transactions
- Regularly assist clients in the evaluation and management of potential environmental liabilities, including qualifying for Bona Fide Prospective Purchaser status under federal law, assisting clients under the various state brownfields laws (including California, Ohio, Massachusetts, and the Southeastern states), and the use of other mechanisms such as environmental insurance and contract provisions to manage one's environmental exposure.
- Regularly hire, direct, and review the work product of technical consultants involved in evaluating property, such as a Phase I Environmental Site Assessment, or addressing environmental investigation and cleanup needs associated with property.
- Counsel clients regarding available tax credits and grant sources for the development of contaminated properties.
- Counsel clients on mergers, acquisitions, and the purchase or sale of facilities or other business interests and help develop plans for the allocation and management of environmental liabilities in such transactions, including drafting of environmental provisions in purchase and sale agreements and leases.
- Litigate and arbitrate indemnity and other contract disputes for clients in different regions of the country.
- Determine environmental compliance requirements and liabilities associated with companies in securities offerings.
- Evaluate environmental conditions/liability in sales of facilities in foreign countries.
- Assist lenders in minimizing the possibility of environmental liability for secured interests.
- Handled sales of waste treatment and management facilities.
- Advised on purchase and continued use or redevelopment of contaminated properties for industrial, general commercial, residential, and mixed use developments. Examples include, the purchase of a former landfill for redevelopment, including obtaining insurance and negotiating terms of a brownfield agreement with the state; the acquisition, development, and division of a former dry cleaner site for mixed use that included a school; and the acquisition of low-level nuclear waste management facilities.
Emergency and Disaster Response
- Coordinate clients' response to spills, fires, explosions and transportation accidents involving releases of contaminates, fish kills, personal injury or death, property damage, highway closures and evacuations
- Successfully completed an intense, worldwide chemical regulation investigation and recall of a sensitive product, which included halting shipments and cargo vessels and negotiating resolutions with numerous state and foreign governments.
- Assisted client in response, reporting, evacuation and reoccupation, media and community relations management, remediation, and mass tort/class action defense resulting from a tragic train derailment and chlorine release and in the defense and successful resolution of a subsequent Clean Water Act lawsuit filed by the United States Department of Justice.
- Assisted clients in identifying and evaluating appropriate environmental insurance products.
- Assisted clients in identifying and asserting insurance claims and working to resolve claims in our clients’ favor.
- Litigation of coverage issues when necessary.