Environmental
Complex regulatory issues can come up in just about every aspect of business today. Environmental issues often are at the top of the list in the search for solutions to regulatory concerns primarily because we all want to protect the health and safety of workers and the public, but also because environmental questions can become expensive and time consuming.
Finding the right answer to complex environmental problems takes depth of experience and a practical approach. Business goals have to be met or altered in response to environmental challenges—whether they are everyday or unique. Nelson Mullins puts clients’ business first.
Our attorneys work with these issues every day. We know the laws and regulations, how they’ve been interpreted, and how to deal with them. We participate in the American Bar Association’s Sections on Energy and the Environment, Litigation (Environmental Committee), and Administrative Law and Regulatory Practice. We also belong to organizations such as the Environmental Law Institute, the Defense Research Institute, the Society for Chemical Hazard Communication and other professional and business organizations that help us stay informed about new initiatives and new concerns. We stay active in state organizations covering environmental issues as well. We work with representatives of EPA and state and local regulators and learn what their views and priorities are.
Our experience includes work across the United States in:
- Transactions
- Land Use
- Regulatory and Compliance Counseling
- Litigation
Asset transfers, mergers and acquisitions, stock sales, and security interests can result in nasty surprises if environmental liability implications are not taken into account up front. The regulatory and litigation experience of our environmental attorneys gives our representation of clients in transactions the benefit of a practical approach aimed at quantifying and avoiding unacceptable risks of liability. We’re committed to finding ways to make a deal work within the framework of our client’s business goals.
Due Diligence: We help clients arrange for and interpret the results of environmental site assessments and use them to evaluate the need for sampling and testing, the impact of liabilities on the dollars and cents of the deal, and ways of limiting liability. Among the transactions we’ve coordinated due diligence reviews for are the purchase of a business with industrial sites in 13 states.
Brownfields Redevelopment Act and Voluntary Clean-up Programs: Clients planning to buy or sell contaminated property come to us for help negotiating terms for Brownfields Redevelopment and voluntary clean-up contracts that enhance the value of the property and reduce potential environmental liabilities. We have negotiated redevelopment projects
- in California, in which a portion of a landfill was used for hotel development,
- in the upstate of South Carolina where a mothballed industrial site was reactivated for industrial operations,
- on the coast, involving a voluntary clean-up contract for a change in use of a wood treatment site to commercial use,
- in Boston, where a blighted area was revitalized through a mall project, and
- in South Carolina, in which we are actively working to bring an NPL site into productive industrial use.
Contract Terms and Negotiations: Our attorneys draft contract terms and negotiate with attorneys on the other side of the deal to improve our clients’ protection in transactions. We also see that our clients get the deal they struck correctly reflected in the contract.
Environmental Insurance: Insuring against the risks that our clients don’t want to bear can be accomplished through working with brokers and agents to identify environmental conditions and liabilities for coverage. We work to maximize liability protections through the acquisition of environmental insurance that protects against cost-overruns, third-party offsite claims, and newly discovered conditions.
Land use controls have to reasonably relate to the purpose of the regulation (zoning ordinance or use restriction) or they are subject to challenge. Controls that unreasonably burden one owner with the cost of a benefit to the public may also be challenged. Variances, direct challenges and appeals of land use controls are legal services Nelson Mullins can provide to help clients achieve the best use of their land.
Regulation and Compliance Counseling
Nelson Mullins has represented clients on regulatory matters under all of the major federal environmental statutes and their state counterparts in the Southeast. The programs and media we’ve worked with include:
- the Clean Air Act
- the Clean Water Act
- Wetlands
- the Resource Conservation and Recovery Act
- Underground Storage Tank Programs
- Dry Cleaning Facility Restoration Trust Fund Programs
- the Emergency Planning and Community Right to Know Act
- Spill Reporting (multiple statutes)
- the Toxic Substances Control Act
- the National Environmental Policy Act
It goes without saying that knowledge of the requirements you’re bound by is the key to compliance counseling. Nelson Mullins attorneys advise clients day-to-day on what standards apply to their businesses and how they are interpreted by environmental agencies. We follow agencies’ policies and enforcement initiatives and know how they apply them.
A few examples of compliance issues we’ve counseled clients on include:
Air: Interpretations of regulations and permits relating to the Credible Evidence Rule, PSD applicability, the appropriate use of air emission models and modifications under the New Source Review program.
Water: Options for addressing whole effluent toxicity issues so that determinations of non-compliance and penalties can be avoided, resolution of drought-related discharge dilemmas, and wetland questions related to disturbances caused by state-mandated waste clean-up efforts.
EPCRA: Measures to verify conformity with reporting requirements under Sections 311 and 312, as well as Form R reporting under Section 313.
RCRA: Corrective action issues at RCRA TSD facilities.
CERCLA/Brownfields/Voluntary Clean-up Contracts: Negotiations and agreements with environmental agencies toward clean-up standards and limitations on liabilities of property owners.
Our attorneys can help you with initial permitting, permit modifications, clarifications, and re-issuance, as well as the application of newly-adopted standards. Detailed knowledge of permitting procedures and requirements is critical to the services we provide in enforcement and litigation.
Clean Air Act : Air permits drive significant business, development and expansion decisions these days. We have worked with clients toward the issuance, renewal, and modification of operating permits under Title V, New Source Review requirements, construction permits under the NESHAP permits, the Prevention of Significant Deterioration program, the Section 112 Risk Management Plan, and permits under state requirements. We have also negotiated with state agencies on establishment of Plant-wide Applicability Limits (PALs) for particular clients.
Clean Water Act: As permit conditions under the Clean Water Act become increasingly stringent, water quality standards and their implications for wasteload allocation and the development of Total Maximum Daily Loads (TMDLs), among other initiatives, Clean Water Act permitting has become more complex. Our attorneys have represented clients in the regulatory changes to South Carolina’s water quality standards and test methods, and the development of TMDLs. Our Clean Water Act permitting involvement includes NPDES permits, indirect discharger permits, storm water permits (both for construction and for other industrial activities), as well as state permits supplementing federal Clean Water Act requirements.
Wetlands: Wetlands permitting requires thorough knowledge of the jurisdictional issues that have cropped up in the last few years following the SWANCC decision. Wetlands permitting also demands familiarity with the array of federal nationwide permits, the ins and outs of state certification issues, and a working relationship with the agencies issuing the permits and certifications. We have all that.
Coastal Permitting: The Coastal Zone Management Act and other requirements specific to the coast result in intricate requirements and standards for permitting activities in the Coastal Zone. Our attorneys have focused on permitting commercial, industrial, residential and recreational developments (such as marinas and golf courses) in the Coastal Zone. Stormwater permits near coastal waters, particularly near 303(d) waters, can present special challenges. We team up with engineers and technical consultants to meet client goals within the more stringent standards that apply to those kinds of waters. Restrictive covenants for wetlands and buffers and for mitigation sites are another area of coastal development permits we work with. Knowing not only the interrelationship of federal and state programs, but also the staff that make the permitting decisions facilitates our wending our way through the complex permitting maze for coastal projects.
Waste: Hazardous waste permits under the federal Resource Conservation and Recovery Act and delegated state programs involve combinations of technical and legal questions. Our attorneys have experience in permitting under RCRA and state counterparts. We also have represented clients obtaining permits to construct and expand solid waste landfills, construction and demolition debris landfills, solid waste processing facilities, and transfer stations.
Nelson Mullins attorneys can advise you in responding to the range of enforcement possibilities that may face you—from letters of inspection deficiencies, notices of violation, and compliance conferences to litigation. We’ve 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 will enhance compliance and environmental protection.
Examples of enforcement issues we’ve faced with clients include:
Air: application of the Credible Evidence Rule, PSD applicability, New Source Review, Title V compliance certifications, NSPS, NESHAPs and state and local SIP requirements.
Water: A state-issued NOV for whole effluent toxicity non-compliances brought us to the table with the issuing agency. The presentation we prepared with our client persuaded the agency that test results that suggested non-compliance were unreliable, and the agency dropped the enforcement action.
Wetlands: Wetlands enforcement actions can come from the U.S. Army Corps of Engineers, the state environmental agency, and, in the case of South Carolina, from either DHEC or the Office of Ocean and Coastal Management Resources. With all these agencies involved, complex and even opposing actions for resolving claims of violations can result. Criminal and civil enforcement action may be taken to enforce violations. Nelson Mullins has taken clients through Administrative Law Court hearings, negotiated civil and criminal penalties and restoration actions and after-the-fact permitting for wetlands areas.
RCRA: We have coordinated actions in response to a clean-up order under Section 7008(h) and overseen audits in response to enforcement actions.
Criminal Defense: We have defended clients in threatened criminal proceedings under RCRA and the Clean Water Act.
We evaluate potential liabilities for indoor air conditions relating to mold, asbestos, radon, lead and other chemicals with permissible exposure limits, among other substances. We also advise clients on steps they can take to reduce potential liability.
Nelson Mullins joins regulatory know-how with courtroom saavy for a formidable combination in litigation. We recognize that litigation requires us to be attuned to subtle issues that can resolve problems through negotiation and alternative dispute resolution. At the same time, we’re prepared for a courtroom fight if that best serves our client.
CERCLA: Our environmental attorneys represent clients in all aspects of CERCLA litigation. Our work spans the receipt of the Section 104(e) information request to completion of the allocation of responsibility among PRPs.
Toxic Tort/Property Devaluation: We have defended toxic tort and property damage and devaluation claims as an adjunct to CERCLA actions and as stand-alone claims in multiple jurisdictions in the Northeast and Southeast.
Administrative Appeals: We prosecute and defend appeals of administrative actions, be they issuance of permits with improper standards or procedures, policies beyond the jurisdiction or authority of the agency, denial of access to environmental clean-up funds, or NIMBY appeals.
Regulatory Challenges : Challenges of regulations during the promulgation process and in the context of administrative appeals (as the regulations are applied) can be complex and frustrating. Nelson Mullins brings former agency counsel and practiced appellate litigators to our clients needs.
Property Rights: Our attorneys have participated in litigation on takings of private property through environmental regulation or land use regulations, and advise clients on the vesting of property rights in development situations.
Citizens Suits: Our attorneys have been involved in citizens suits under RCRA, CERCLA and the Clean Water Act.