The Firm’s Environmental Litigation and Cost Recovery Practice supports property owners, developers, lenders, and local governments in prosecuting and defending complex environmental claims under CERCLA, RCRA, and Florida Chapters 376 and 403, and filing challenges to agency action under Florida’s Administrative Procedures Act. We combine deep statutory and regulatory knowledge with hands-on experience in contaminated site cleanup, brownfields redevelopment, and government enforcement to develop litigation strategies that are legally sound, scientifically credible, and commercially practical.
Cost Recovery, Contribution, and Defensive Litigation
We represent clients in disputes arising from soil, groundwater, and vapor contamination across Florida, including industrial facilities, landfills, gas stations, agricultural and nursery lands, and waterfront and urban infill sites. Our work includes CERCLA cost-recovery and contribution actions under Sections 107 and 113, seeking reimbursement of investigation and cleanup costs from responsible parties; RCRA “imminent and substantial endangerment” suits to compel cleanup or obtain injunctive relief; and state-law claims under Chapters 376 and 403, Florida Statutes, including strict-liability cleanup claims, statutory cost recovery, natural resource damage claims, and related common-law theories.
Offsite, Third-Party, and “Legacy Seller” Contamination
A significant part of our practice involves evaluating and litigating claims when contamination has migrated onto a client’s property from an offsite source, a former owner or operator caused contamination and failed to disclose it, or local governments have acquired contaminated land through tax deed, foreclosure, or other involuntary means. We help clients evaluate whether they can recover investigation and remediation costs from responsible parties; how to structure claims to reach parent companies, affiliates, or successors; and how to integrate litigation strategy with ongoing regulatory negotiations and brownfield or voluntary cleanup programs.
CERCLA Defenses and Landowner Liability Protections
Because CERCLA imposes broad, joint-and-several liability, understanding defenses and exemptions is critical. We help clients evaluate and assert:
Statutory Defenses Under CERCLA Section 107(b)
Section 107(b) provides three traditional affirmative defenses where a defendant can show that the release was caused solely by:
- An act of God,
- An act of war, or
- An act or omission of a third party with whom the defendant has no qualifying contractual relationship, and where the defendant exercised due care and took precautions against the third party’s foreseeable acts or omissions.
We methodically develop the factual record—historic ownership, operations, waste-handling practices, and due care—needed to test and assert these defenses.
Landowner Liability Protections: BFPP, CPO, and Innocent Landowner
We also counsel clients on the more modern landowner liability protections (LLPs) created by the 2002 Brownfields Amendments to CERCLA.
- Bona Fide Prospective Purchaser (BFPP) – Allows a purchaser who conducted All Appropriate Inquiries (AAI) and meets continuing obligations (e.g., reasonable steps, cooperation, no affiliation) to avoid liability, even with knowledge of contamination at purchase.
- Contiguous Property Owner (CPO) – Protects owners whose property is contaminated solely by migration from a neighboring site, if they did not cause or contribute to the release and meet statutory criteria.
- Innocent Landowner – Available where a purchaser, governmental entity, or heir acquired property without knowledge of contamination despite AAI and satisfies the “third-party” requirements of Section 107(b)(3).
We help clients evaluate whether they meet these criteria, identify gaps (e.g., historical all appropriate inquiries, due care, or affiliation issues), and either shore up the defense or adjust strategy—including using these defenses offensively in negotiations or litigation.
Florida Statutory Defenses: Chapter 376 and Brownfields
Florida provides additional, sometimes more nuanced, defenses and liability protections.
Defenses Under Section 376.308, Florida Statutes
Section 376.308 sets out liabilities and defenses of facilities in state cleanup actions. For petroleum and hazardous-substance sites, the statute recognizes:
- An “innocent owner” defense for certain petroleum and drycleaning sites where the owner acquired contaminated property from a previous owner, did not cause or contribute to the discharge, lacked knowledge of contamination at purchase, and conducted “all appropriate inquiry” consistent with good commercial practice.
- Traditional defenses where the discharge was solely the result of act of war, act of government, act of God, or qualifying third-party acts, provided the defendant exercised due care and took precautions—mirroring CERCLA’s third-party defense.
- Lender defenses for trustees, fiduciaries, and secured lenders holding indicia of ownership primarily to protect a security interest, provided they do not cause or contribute to the discharge and meet statutory conditions.
We frequently analyze whether clients can avail themselves of these defenses in disputes with FDEP or third parties and integrate them with CERCLA strategies.
Brownfield Liability Protections Under Sections 376.82(2) & (4)
For qualifying brownfield projects, Section 376.82(2) provides broad liability protection for parties who execute and successfully complete a Brownfield Site Rehabilitation Agreement (BSRA), including relief from further cleanup liability to the state and third parties, contribution claims from other potentially liable parties, and certain property damage claims tied to contamination addressed in the BSRA. Subsection 376.82(2)(k) further protects property owners whose sites become contaminated solely by migrating contaminants from nearby brownfield areas, if they meet statutory criteria (no ownership in or control over the source, and no contribution to the release). Under Section 376.82(4), additional protections extend to lenders financing brownfield projects, shielding them from liability for releases they did not cause or contribute to and for failures by the responsible party to comply with the BSRA, so long as the lender’s role is limited to protecting a security interest and disposing of the property as soon as practicable. We help clients and their lenders structure transactions and cleanup commitments to capture these protections and deploy them strategically in litigation or pre-suit negotiation.
Team Strength: Regulatory, Scientific, and Litigation Support
Superfund and Enforcement Insight. Senior Attorney Matthew (Matt) Sander brings more than two decades of experience as an Attorney-Advisor in EPA’s Office of Site Remediation Enforcement (OSRE), where he worked on Superfund enforcement, institutional controls, and land reuse guidance, including key documents on Ready for Reuse determinations, institutional controls, municipal liability protections, and landowner defenses. Matt’s deep familiarity with EPA enforcement policy, guidance development, and landowner liability protections allows us to anticipate how EPA may frame liability or defenses in CERCLA disputes, use EPA guidance effectively in negotiations and briefing, and structure settlements and consent decrees that align with federal expectations.
Scientific and State-Regulatory Expertise. Dr. Brian Dougherty serves as our Director of Technical and Regulatory Services. Before joining the Firm, he held senior technical and management roles within FDEP’s Division of Waste Management, helping shape Florida’s Contamination Cleanup Criteria Rule (Chapters 62-780 & 62-777, F.A.C.) and risk-based corrective action framework. Brian’s ability to “translate” between hydrogeologists, risk assessors, and lawyers is critical in litigation involving groundwater plume behavior and fate & transport, risk assessments and cleanup target levels, and technical challenges to or defenses of remedial decisions and cost allocations. He helps craft technically robust expert strategies, interrogate opposing experts, and develop persuasive narratives for regulators, mediators, and courts.
Partnering With Trial Counsel
As a boutique, we deliberately focus on substantive environmental expertise rather than trying to be all things to all clients. When full-scale litigation is required—jury trials, lengthy bench trials, or complex multiparty proceedings—we partner with experienced trial lawyers at regional and national firms. In those matters, we serve as subject-matter counsel, shaping overall strategy; draft and support pleadings, motions, and dispositive briefing on environmental and scientific issues; prepare and examine expert and fact witnesses on technical and regulatory topics; and lead settlement negotiations and mediation on allocation, cleanup scope, and long-term obligations. This model gives clients the best of both worlds: seasoned trial firepower plus a highly specialized environmental team that lives and breathes CERCLA, RCRA, and Florida contamination law. The Firm stands ready to help clients in Florida and beyond understand their exposure, assert powerful defenses, and turn complex environmental disputes into manageable, business-oriented solutions.