Carlton Fields

Air

The Firm represents industrial clients in connection with major and minor source permitting and enforcement matters, including Title V permitting, and hazardous air pollutants. Current representative industries include wall board, paint, and resin product manufacturing, drum recycling, and citrus processing. Members of the firm have prior experience in mini-refining and petroleum terminal air permitting issues. The firm recently negotiated and implemented a joint regulatory innovation agreement under the Environmental Council of States (ECOS) between the EPA, Florida DEP, and members of Florida's citrus processing industry that allowed a majority of the Florida's citrus processors to obtain "permitting by statute" as an alternative to otherwise burdensome Title V air permitting. Several years ago, the Firm was extensively involved in the DEP/DER rule-making and fact finding proceedings related to the handling of sulfur and potential emissions during its shipment in molten or prilled form into Florida, especially into the Port of Tampa.

Coastal Construction

We assist clients in permitting of coastal armoring (revetments, seawalls) and in all aspects of construction seaward of the Coastal Construction Control Line (CCCL).

Community-Right-To-Know (SARA)

We assist clients with respect to the various reporting and recordkeeping obligations under the Emergency Planning and Community Right to Know Act (EPCRA) including emergency planning and notification, emergency release reporting obligations, chemical hazard reporting, chemical inventory (Tier II) and toxic release (Form R) reporting, the resolution of compliance and enforcement matters relating to these obligations, as well as pre-inspection preparation.

Endangered & Listed Species

Members of the Government Practice Group represent clients on issues relating to endangered and listed species at the local, state, and federal level. At the local level, we advise and represent clients in connection with the development and the application of local land use regulations designed to safeguard these species of special concern. At the state level, we deal directly with the Fish and Wildlife Conservation Commission, as well as with the Department of Community Affairs, the Department of Environmental Protection, and the various water management districts, on issues relating to the possible impacts of development activities on wildlife, including species of special concern. We also represent clients in enforcement proceedings, when there has been an alleged violation of local, state, or federal criteria relating to endangered or listed species.

Environmental Due Diligence

We assist Firm clients in evaluating land use and environmental issues and resolving regulatory challenges posed by different types of development. These activities include assisting clients with environmental and land use "due diligence" prior to purchasing or developing real property for residential, commercial, and industrial development such as conducting land use and zoning verification, reviewing the status of development and environmental permits, and agency files, and meeting with zoning and environmental officials regarding particular issues. As a result of these due diligence activities we assist clients in identifying potential land use and environmental issues and resolving those issues at the outset of a transaction, or assisting the client through the permitting process and any appeals or challenges, as well as assisting clients in the negotiation of various environmental representations, warranties, covenants and releases which have become a "standard" part of the development agreements, leases, easements, mortgages and loan agreements involved in the clients' land development efforts.

Environmental Insurance

We have developed extensive use and reliance on environmental insurance products to facilitate transactions involving contaminated properties.We have extensive experience with all of the major underwriters writing policies on Florida properties to cover environmental contamination, including pollution legal liability policies (PLL) to cover known conditions and negotiation of policies that will "wrap-around" and supplement the State of Florida Petroleum and Dry-Cleaner Cleanup Programs, third-party indemnifications and remediation agreements, as well as cap-cap policies and development of tailored "turn-key" remediation contracts and insurance products.

Environmental Litigation (Overview)

We have substantial trial, transactional, and regulatory experience in a broad range of subjects and have developed skills in managing large, complex litigation and regulatory matters in an economical manner. These include matters involving solid and hazardous waste, air and water quality, water rights and water supply, electric and magnetic fields, Superfund, RCRA, TSCA, EPCRA, the Clear Air Act, and CWA, toxic torts, tank regulation, indoor air quality, land use, worker protection, and community right-to-know. The toxic tort portion of the environmental practice group has successfully defended against claims of exposure, induced injuries involving PCBs, dioxins, asbestos, tobacco, indoor air quality issues, methyl bromide, electric and magnetic fields, 2,4-D and 2,4,5-T. Carlton Fields' attorneys work regularly with scientists in a wide range of specialties and have vast experience in working with toxicologists, epidemiologists, immunologists, geologists, geohydrologists, oncologists, chemists, and biochemists. Our lawyers have become familiar with risk assessment techniques, for toxic tort, regulatory and litigation purposes.

Indoor Air Quality

The firm handles litigation including defense of Americans with Disabilities Act and "Building Related Illness" claims, and provides clients with regulatory compliance and transactional assistance in connection with indoor air pollutants and concerns including radon, asbestos, electromagnetic fields (EMFs), lead paint, mold (and other biological contaminants), sick building syndrome, environmental tobacco smoke, vapor intrusion.

Marina Permitting

We assist clients with sovereignty and submerged land leases and accompanying Environmental Resource Permits for docks and marinas.

Mining

Mold and Microbial Contaminants

In the absence of express regulatory standards for testing, cleanup or licensure of mold "professionals," evaluation and remediation of mold or other microbial "contamination" can be technically challenging, at best. We advise clients as to applicable state and federal regulatory guidance, the retention of consultants and remediation contractors, the implementation of remediation projects in occupied space, coordination with other regulatory requirements (such as renovations involving asbestos containing building materials), environmental due diligence and contract/lease drafting issues involving mold concerns, and development of property management and maintenance employee guidance for dealing with mold in commercial and residential properties. In addition, we have substantial experience in all aspects of mold litigation, including prosecution and defense of mold insurance claims.

Noise

We assist clients with resolution of noise complaints or nuisance actions brought either by private entities or in the context of enforcement actions brought by state or local governmental officials, including where appropriate, challenges to the constitutionality of local noise ordinances.

Permitting

We assist clients with during all phases of permitting from developing pre-application or pre-renewal strategies, through the application process, negotiation of permit conditions during initial permit issuance or renewal, challenges to proposed permit conditions, either on behalf of the permittee or other interested parties, as well as other permit compliance and enforcement matters. We represent clients before all federal, state and local agencies and boards, including the US Environmental Protection Agency, the US Army Corps of Engineers, the Governor and Cabinet, the Florida Department of Environmental Protection, the Florida Game and Fresh Water Fish Commission, the water management districts as well as local governments. Our state-wide presence and relationships with local and agency staff and management, as well as strong legal and lobbying team in Tallahassee, can craft solutions to thorny regulatory problems. Substantive areas include: air (mobile sources, Title V, PSD), water (supply, reuse, industrial and domestic wastewater facility permitting, stormwater and NPDES), solid and hazardous waste (C&D, Class I and III landfills; transfer stations, used oil recycling and solid waste management facilities, RCRA facility permitting), coastal construction, marinas, wetlands and dredge and fill/environmental resource permits.

Regulatory Compliance

We advise the firm's clients on all aspects of regulatory and permit compliance, including responses to agency inspections, recordkeeping and reporting/notification obligations, as well as development of internal compliance auditing strategies or other tailored internal procedures to minimize the potential for adverse regulatory enforcement. In addition, we assist clients in developing detailed technical and legal responses to alleged violations of law, permit or rule, in order to settle violations in a mutually acceptable manner. This may include development of in-kind settlement solutions or acceptable pollution prevention plans that can offset a proposed penalty amount, particularly in the context of representation of governmental agencies.

Rulemaking and Rule Challenges

The Government Practice Group provides legal assistance to clients by monitoring and participating in agency rulemaking proceedings in order to ensure that the clients' perspectives are presented to the agency and reflected in the record of rulemaking. In addition, we represent clients in administrative challenges to existing and proposed rules, as well as to those agency statements that meet the definition of a rule but have not been formally adopted. Our experience in rulemaking and rule challenge matters ranges across a wide array of subjects, including, for example, such diverse matters as building code criteria, professional and business licensure, environmental permitting, state tax, and insurance.

Solid & Hazardous Waste

We handle all aspects of solid and hazardous waste regulation, permitting, and compliance, RCRA closure permits, matters relating to various special wastes such as bio-hazardous waste, used oil, PCBs, construction and demolition debris, asbestos containing building materials and wastes, automobile shredder residue and other metal recycling and scrap industry related wastes, landfill operation and permitting (including Class I, III and C&D facilities), waste transportation issues (including negotiation with the FAA regarding alleged violation of federal waste transportation regulations), and sham recycling issues in a variety of contexts.

Stormwater Permitting

Our lawyers represent clients before federal, state and local government agencies in addressing issues concerning stormwater and stormwater permitting. The attorneys in this practice area have a wide range of knowledge concerning stormwater permitting issues throughout the State of Florida and includes former assistant general counsel from the Florida Department of Environmental Protection and various Water Management Districts throughout the State. We work with clients and assist in the preparation of permit applications that meet all applicable regulatory requirements. Typically, this involves the coordination of various engineers, consultants, etc., in collecting the necessary information to complete the application. In addition, we represent clients in conjunction with enforcement issues concerning existing stormwater permits. Our representative clients include commercial and residential developers, as well as local school boards and telecommunications companies.

Superfund/CERCLA

We represent clients in all aspects of the defense of liability and cost recovery actions under CERCLA as well as analogous Florida statutory and common law, as well as conducting cost recovery actions for individual clients or on behalf of cooperating PRP (Potentially Responsible Party) Groups. We have extensive experience advising clients regarding reporting obligations under CERCLA, the preparation and response to CERCLA 104(e) requests for information from US EPA, the negotiation of consent orders and decrees for Remedial Investigation/Feasibility Studies and Remedial Design/Remedial Actions at Superfund sites. Members of the firm have served as common counsel and Technical Committee Chairs to PRP Groups (such as the Peak Oil Site Group). We have served as allocation counsel for the Peak Oil Group successfully settling (without litigation) over a thousand de minimis parties through an allocation protocol approved by EPA Region IV and administered by the firm.

In the transactional context, we have advised land owners clients, prospective purchasers and lenders as well as governmental entities, regarding liability under CERCLA and analogous state laws, including exemptions and defenses under CERCLA (such as the "innocent purchaser defense", the scope of "All Appropriate Inquiry" as part of acquisition due diligence, successor liability issues, etc.).

Superfund Litigation

• The Firm has been involved in a number of cases covering several of the major Superfund/CERCLA sites here in Florida. Two of those, in the Pensacola and Miami area, involved litigation and claims both by governmental agencies and by private parties. The Pensacola litigation was resolved as to our client, a major lender, through mediation and a resulting nominal payment by the bank involved. The Miami proceedings were also the subject of state court litigation and appeal, when one of the PRPs attempted (in what might be termed a "reverse" quiet title action) to claim that it did not own a piece of contaminated land. In the Miami case, the principal defenses asserted the unconstitutionality of CERCLA as it was sought to be applied against our (landlord) client. The District Judge denied a motion to dismiss predicated on that basis, but acknowledged in her order that factual discovery could certainly provide a basis to renew these arguments at the summary judgment stage. Following some significant changes to the Department of Justice positions, a settlement was reached and a consent decree entered by the Court. We are now representing the same defendants in cost recovery litigation brought by one of the other potentially responsible parties at the site.

• In a third CERCLA matter, the Peak Oil Waste Oil Recycling Site here in Tampa, the Firm has been involved for more than a decade. Members of the Firm have served as an Officer of the Steering Committee and Chair of the Technical Committee, and handled the allocation process and negotiation of de minimis settlements between hundreds of PRPs and the EPA, leading to the establishment of a trust fund in excess of several million dollars, the completion of the assessment the site, negotiation and lodging of a consent decree and implementation of remediation at the site.

• At another Superfund site, the Firm defended a client that was sued for CERCLA cost recovery by the Department of Justice and EPA, after 15 years of ongoing negotiation with both EPA and the Florida Department of Environmental Protection ("DEP"). Our client in that case, a drum reconditioning facility, was sued by the Department of Justice for past and future response costs at the site. After two years of aggressive litigation defense, followed by intensive mediation, a settlement consent decree was approved by the Federal Court involved. Under the terms of the decree, the United States recovered in excess of $3 million, being paid by the client's insurance carrier, and the client is undertaking the remediation required by EPA.

• In other cases, we have represented or are now representing clients with respect to private party CERCLA claims and analogous actions under Florida statutory law. In one instance, now completed, we represented a university that, for a period of time, through the bequest of an alumnus held stock in the company that allegedly cause a creosote contamination problem near Jacksonville. In a case of first impression, the U. S. District Court for the Middle District of Florida held on summary judgment that our client was not liable under CERCLA as an owner or operator of the site by virtue of its acts or capacity as the "parent corporation" of the site owner. The Eleventh Circuit affirmed the decision, and the opinion of the Eleventh Circuit now represents the controlling law in this Circuit, a position rejecting the view that a parent entity, or corporate officers or directors, can be held liable in a CERCLA action because of their apparent capacity to control a company's environmental procedures. The decisions are reported at 776 F. Supp. 1542 (M.D. Fla. 1991) and 996 F.2d 1107 (11th Cir. 1993).

• In another instance, involving an out of state CERCLA site, but a Florida defendant, Carlton Fields confronted the issue of whether the Federal CERCLA statute would pre-empt time limits for filing probate claims which would otherwise be applicable under the Florida Probate Code. The Federal District Judge in Kansas City, Missouri, held that the federal law would take precedence over the Florida Code. The Martin County Probate judge differed with that interpretation, and his decision was affirmed by the District Court of Appeal. Because of the conflict in these rulings, coupled with the potential application of innovative technologies for site remediation, the issues related to the Florida probate claims has been settled after negotiations by the counsel directly involved in the Missouri litigation. The Florida District Court of Appeal decision is reported at 764 So. 2d 24 (4th DCA, Fla. 1999).

Tank Regulation

We assist clients with all aspects of regulatory compliance relating to petroleum and other regulated above and below ground storage tanks and systems, reporting and recordkeeping obligations, regulatory exemptions, eligibility criteria and applications to various state cleanup programs, assessment and remediation of discharges, negotiation of Risk-Based Corrective Action under applicable regulations and associated restrictive covenants, Site Rehabilitation Completion Orders and "No Further Action" Letters.

Wastewater Systems, TMDLs & WQBELs

Industrial and domestic wastewater plants, permitting and enforcement matters, including TMDLs and WQBELs. We represent various clients in connection with facility the permitting of domestic and industrial waste water treatment plants, municipal wastewater treatment plants and water reuse facilities, industrial wastewater treatment plants, and pre-treatment facilities and resulting surface water discharges, including determinations of Water Quality Based Effluent Limitations (WQBELs) and Total Maximum Daily Loads (TMDLs) and agency challenges to the WQBELs and TMDLs. Representative industries include shrimp and fish packaging, wall board manufacturing, food products manufacturing, metal recycling and shredding operations, used oil recycling, citrus packaging, automobile component manufacturing, styrofoam, and resin pipe manufacturing.

Water Rights, Supply and Use

We work with clients to achieve water management district goals for water conservation through coordination of consultants in the preparation of water use permits (WUPs) and water supply planning activities. In this process, we have also had to represent and defend WUPs and accompanying Environmental Resource Permits (ERPs). Our in-house planning staff has extensive experience and currently provides management services to a regional water supply authority. Finally, we have significant experience in guiding clients through the process of groundwater contamination remediation including contamination of public water supplies and permitting of water reuse facilities.

Wetlands/Dredge & Fill/Mitigation Banking

Government Practice Group members have significant experience representing clients in connection with a wide range of environmental permitting and compliance matters, particularly in the areas of wetlands, dredge and fill, and mitigation banking. We work with clients on projects located in each of the water management districts, as well as those projects that fall within the jurisdiction of the Department of Environmental Protection either because of their nature or because they are situated within the North Florida Water Management District, where DEP retains permitting authority. We also guide clients through permitting by the Army Corps of Engineers. Moreover, we are experienced in the permitting of mitigation banks and the utilization of mitigation credits purchased from such banks on specific projects.