Articles By Kevin Murphy

About Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

The Time to Protect Your Computer Systems is Now Before Your System is Breached or Falls Prey to a Phishing Attack

Hackers

In the past months, damaging ransomware attacks have swept across the globe and infected tens of thousands of computers. The hackers transmitted the ransomware via a phishing e-mail, and then, once the user clicked the bait, the hackers used methods thought to have been developed by the United States National Security Agency, and locked businesses out of their systems. The ransomware impacted businesses both large and small, notably including multiple hospitals in Great Britain, forcing them to turn patients away, FedEx, the Russian Interior Ministry and a large Spanish telecommunications company. In the United States, law firms also have been targeted.

In the wake of the attack, affected businesses must focus on damage control and clean-up. Unaffected businesses also need to react and take steps to protect themselves from becoming a victim of not only the next round of large-scale attacks but smaller attacks and phishing efforts that are on-going all the time. Accordingly, here are five things that all businesses can and should do.

  1. Install All Patches and Upgrades to Systems When Issued. In the case of the most recent global ransomware attack, Microsoft had released a patch weeks before the attack hit. Installing the patch would have protected systems by not permitting the ransomware to take hold.
  2. Back-Up All Vital Data on a Continuous Basis. This is of particular importance in ransomware attacks. Ransomware encrypts a victim’s data and will only provide a key for access upon the payment of ransom. The payment of a ransom, however, may be unnecessary when up-to-date backups are available.
  3. Employee Training. Employees should be trained on a regular basis on how to identify phishing e-mails and how to avoid cyber-attacks.
  4. Purchase and/or Examine Cyber Security Insurance Policy for Compliance. If your business currently has a cyber security insurance policy, ensure that the policy adequately covers your needs and ensure that your business meets the security requirements attested to in such policy. Not meeting the insurer’s security requirements may make your insurance worthless. If you do not have insurance, consider whether you should secure insurance.
  5. Perform a Risk Assessment and Develop a Response Plan. Assessing current systems will help to identify vulnerabilities that can be addressed proactively. For health care providers, HIPAA requires that covered entities perform a “risk analysis” to identify risks and security vulnerabilities and implement security measures that are sufficient to reduce such risks and vulnerabilities. Lack of up-to-date risk analysis and security failures have led to fines in the hundreds of thousand dollars. Actual breaches have resulted in multi-million dollar fines and of course, all the costs required to be incurred to correct or address the breach. Further, the assessment or analysis will assist with the development and implementation of a Security Incident Response Plan that is designed to ensure expedient and appropriate responses to cyber-attacks and to mitigate damage whenever possible.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you be confronted with data security or data breach issues, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.

Photo: www.cdn.images.express.co.uk

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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Environmental Enforcement in 2017

Lake3

The Trump Administration has proposed the termination of many Obama administration environmental programs and initiatives and drastic cutbacks to the budget of the United States Environmental Protection Agency.

In response, state of New York Attorney General Schneiderman has stated, “President Trump’s budget cuts would cause untold – and perhaps irreparable – damage to New York’s rivers, lakes, and drinking water. Even before these massive cuts, EPA represents just two-tenths of one percent of the federal budget — yet it’s responsible for protecting our environment and public health. As I’ve made clear: if the Trump administration won’t meet its legal obligation to ensure basic access to a clean, safe, and healthy environment, I won’t hesitate to act to protect New Yorkers.”

Without knowing what will, in fact, happen, set out below is a summary of the most current data on the enforcement initiatives that were undertaken at the federal level nationwide and by one component of the state of New York’s enforcement agencies.

The United States Environmental Protection Agency reported the following results for fiscal year 2016:

  • More than $13.7 billion in investments by companies in actions and equipment to control pollution. In addition, a case against Volkswagen lodged in June and entered just after the end of fiscal year 2015 adds up to $14.7 billion to remedy Clean Air Act violations.
  • More than $1 billion in commitments from responsible parties to clean up Superfund sites.
  • $6 billion in combined federal administrative, civil judicial penalties and criminal fines.
  • 93 combined years of incarceration for sentenced defendants.
  • $31.6 million for supplemental environmental projects that provide direct benefits to local communities across the country.

Included in the above totals were the following individual cases or initiatives:

  • Enbridge, which owns and operates one of the world’s largest oil pipeline systems, is spending at least $110 million on implementing a series of state-of-the-art leak detection and monitoring measures to prevent spills, improve operations and protect communities across nearly 2,000 miles of its pipeline system in the Great Lakes region. Enbridge is also paying $62 million in penalties for oil spills in Michigan and Illinois in 2010.
  • Sears will implement a comprehensive, corporate-wide program to ensure its contractors minimize lead dust from home renovation activities to protect the health of children and other vulnerable communities from exposure to lead-based paint.
  • A settlement with national grocery store chain Trader Joe’s Company will reduce potent greenhouse gas emissions from refrigeration equipment at 453 stores nationwide and sets a high bar for the grocery industry for detecting and fixing coolant leaks.
  • EPA completed more than 100 enforcement actions that require entities like renovation contractors, landlords and property managers to protect communities and public health from exposure to lead. Collectively, the settlements require violators to pay more than $1 million in penalties in addition to returning to compliance with federal lead-based paint rules.
  • EPA’s criminal program secured $775,000 in court-ordered environmental projects, generated $207 million in fines and restitution and sentenced defendants to a combined 93 years of incarceration. The two owners of Freedom Industries, a chemical processing company, were each sentenced to 30 days in prison and a $20,000 fine for a chemical spill that contaminated the Elk River and drinking water for 300,000 people and vulnerable communities in Charleston, W.Va., and in surrounding areas.

State of New York Statewide Enforcement Totals for the New York State Department of Environmental Conservation Division of Law Enforcement for calendar year 2014 were as follows:

Beci Totals 4.21.17Statewide 42117

 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York, and is listed in The Best Lawyers in America. Should you be confronted with an environmental issue of any kind and specifically an environmental enforcement, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.

 

Photo By: Anne Lee

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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The Recovery of Natural Resource Damages to Onondaga Lake and its Environs

 

Onondaga Lake 2.24.17

What are Natural Resource Damages?

 When a spill or release of contaminants into the environment results in injuries to natural resources,  designated federal, state or tribal natural resources trustees may seek to a recover natural resource damages (NRDs) from the party or parties legally responsible for the spill or release. The goal of the Trustee’s NRD claim is to secure the restoration, replacement, or acquisition of the equivalent of the injured resources and to compensate the public for its lost use of the damaged natural resources. Damages also include the cost of the damage assessment. “Natural resources” that may be the subject of an NRD claim include, but are not limited to, land, water, groundwater, drinking water supplies, air, fish, wildlife, and biota.


EagleFish 2.24.17

 

Legal Authority

The recovery of damages for injury to natural resources is authorized by both federal and state law. The federal laws are: the Superfund law (i.e., the Comprehensive Environmental Remediation, Compensation and Liability Act or CERCLA), the Oil Pollution Act, and the Clean Water Act. State of New York laws are: the Environmental Conservation Law (ECL), the Navigation Law and common law. CERCLA requires the president and each state governor to designate federal and state officials who will act on behalf of the public as trustees for natural resources. The Governor has designated the Commissioner of Environmental Conservation as the Trustee for New York’s natural resources. The federal Trustee for Onondaga Lake is the United States Department of the Interior (DOI). The Commissioner and USDOI are serving as co-trustees for Onondaga Lake.

Only CERCLA provides a statutory basis for the Onondaga Nation to serve as an NRD trustee. The scope of that authority is both broader possibly more restricted than that of the federal and state trustees. Specifically, the statute reads as follows:

“In the case of an injury to, destruction of, or loss of natural resources under … this section liability shall be …to any Indian Tribe for natural resources belonging to, managed by,  controlled by, or appertaining to such tribe, or held in benefit  for the trust of such tribe ….”

42 U.S.C. § 9607(f)(1). Related sections of the CERCLA statue appear to limit a Tribe’s ability to recover NRDs, while at the same time other provisions appear to expand the reach of Tribal NRD rights. In sum, the ability, scope and magnitude of the ability of an Indian tribe to be awarded NRDs is less than certain.

There are no exclusions from liability for governmental entities; the definition of “person” expressly includes the United States, states, municipalities, or state political subdivisions. 42 U.S.C. § 9601(21). Congress expressed it clearly: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.” 42 U.S.C. § 9620(a)(1). There are limited exceptions to liability however, such as where a government acquired land involuntarily or through eminent domain, but the general rule is clear: governmental entities receive no special treatment under CERCLA.

Trustee Responsibilities

The trustees have the following responsibilities:

  • Assess the damage to natural resources. See, e.g., 42 U.S.C. §9607(f)(2)(A). Federal trustees can also, upon request from a state or Indian tribe, assess damages for a natural resource under the state’s or tribe’s trusteeship. 42 U.S.C. §9607(f)(2)(A); 33 U.S.C. §2706(c)(1);
  • Develop and implement a plan to restore, rehabilitate, or replace damaged natural resources. 33 U.S.C. §2706(c); and
  • Request that the Attorney General commence civil suits against NRD defendants. See, e.g., 16 U.S.C. §19jj-2(a); 16 U.S.C. §1443(c)(1).

One of the trustees’ primary responsibilities is to conduct an NRD assessment to determine the extent of the injury to a natural resource and determine the appropriate manner by which to restore the resource. A natural resource damage assessment (NRDA) is “the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine damages for injuries to natural resources.” 43 C.F.R. §11.14(aa).

The specific procedures to be followed for CERCLA and CWA NRD claims are found at 43 C.F.R. Part 11. Under the CERCLA and CWA regulations, there are two kinds of NRDAs allowed, depending on the resource damaged, Type A and Type B procedures. Type A assessments are “standard procedures for simplified assessments requiring minimal field observations to determine damages.” 43 C.F.R. §11.14(ss). Type B assessments are “alternative methodologies for conducting assessments in individual cases to determine the type and extent of short- and long-term injury and damages.” 43 C.F.R. §11.14(tt). The significant difference between the two types of assessments is the level of complexity. Type A assessments are “simplified assessments” and primarily use modeling to assess impacts with minimal field observation. 43 C.F.R. §11.40. So far, Type A procedures have only been promulgated for coastal or marine environments and Great Lake environments. See 43 C.F.R. §11.33(a). Type B assessments require more intensive field observation and a more rigorous assessment. The procedure for Type B assessments requires four steps: preassessment screen, injury determination, quantification, and damage determination. See 43 C.F.R. §11.60-11.84. The Onondaga Lake site is undergoing a Type B assessment.

The Department of Interior’s Bureau of Land Management Natural Resource Damage Assessment and Restoration Handbook notes that the NRDAR provisions of CERCLA and the CWA are based on three key principles:

  1. Public natural resources are common property of all citizens. The federal and state governments and tribes act as trustees of these resources on behalf of the public.
  2. The parties responsible for the hazardous substance release or oil spill are liable for the costs of restoring the injured resources and compensating the public for the public losses because of the release or spill until resource restoration is complete.
  1. The trustees may use any damages recovered from responsible parties through the NRDAR process only to restore, replace, or acquire the equivalent resources for the public trust.

Id., at Section 1.2, Purpose of NRDAR.

Upon completion of an NRDA conducted under CERCLA and the CWA, determinations or assessments of NRDs made by a trustee “shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding.” 42 U.S.C. §9607(f)(2)(C) (applying the rebuttable presumption to both CERCLA and CWA NRD claims); 33 U.S.C. §2706(e)(2). These presumptions allow trustees to shift the burden of proof from the trustee onto the defendant who then has to prove by a preponderance of the evidence that the assessment is invalid. Where NRD result from a discharge of a mixture of oil and hazardous substances, trustees must use the CERCLA and CWA regulations (43 C.F.R. Part 11) in order to obtain the rebuttable presumption. 15 C.F.R. §990.20(c).

Trustee Actions to Date for the Onondaga Lake Site

In 1994 the State Trustee prepared an Onondaga Lake Preassessment Screen. It concluded that (1) a discharge of oil or hazardous substances had occurred; (2) natural resources had been or were likely to be adversely affected; (3) the quantity and concentration of released substances was sufficient to potentially cause injury; (4) there was sufficient data to pursue an assessment; and (5) response actions would not be sufficient to remedy the NRD injury. The following comprised the list of hazardous substances believed to have been released: mercury; chlorinated benzenes; polynuclear aromatic hydrocarbons (PAHs); benzene, toluene and xylenes (BTX); ammonia; calcium and calcium salts; and other ionic wastes.

The 1996 State NRD Assessment Plan stated that the State trustee was asserting that “the natural resources in and around Onondaga Lake… have been injured by releases from Allied-Signal Inc. (Allied) of hazardous substances as defined under CERCLA and have created a public nuisance under New York State common law. In addition, the trustee asserts that releases of substances which are not defined as hazardous substances under CERCLA (referred to as non-hazardous substances in this plan) by Allied have also created a public nuisance under New York State common law.” See page xi of the Plan. “The boundaries of the study area generally include all areas in the vicinity of Onondaga Lake where Allied released hazardous and non-hazardous substances and all areas associated with the Onondaga Lake system where injuries to natural resources attributable to those releases have occurred.” Id.

In 2005 the USFWS prepared a Pre-Assessment Screen that reached the same five conclusions found in the 1994 State-conducted Pre-Assessment Screen. The Screen also concluded on pages 5 and 6 that:

Hazardous substances released to Onondaga Lake include, but are not limited to the following: mercury, PCBs, lead, cadmium, chromium, nickel, benzene, chlorinated benzenes, toluene, xylene, PAHs, and pesticides, including aldrin and dichloro-diphenyl-trichloroethane (DDT).

Mercury is the primary contaminant of concern regarding trust resources. It is found in sediments throughout the lake, generally in excess of 1 ppm in surface sediment, with higher concentrations found in the Ninemile Creek delta and in sediments in the southwestern portion of the lake in an area known as “in-lake waste deposit” (ILWD). The southwestern portion of the lake also contains some of the highest concentrations of other chemicals such as BTEX, PCBs, PAHs, dioxins, and furans.

The Trustees have engaged in natural resource injury studies, damage assessments, and restoration planning relating to the Site since 1991.  In November 1996, the NYSDEC published its Onondaga Lake Natural Resource Damage Assessment Plan.  In May 2009, the Trustees, the Onondaga Nation, and Honeywell entered into a Cooperative Assessment and Funding Agreement through by which Honeywell agreed to participate and provide funding for the performance of a cooperative natural resource assessment.  In October 2012, the Trustees and the Onondaga Nation issued the Onondaga Lake Natural Resource Damage Assessment Plan Addendum.  It is understood the on-going assessment has determined that sediment, fish, birds, reptiles, amphibians, and mammals sustained ecological injuries from the hazardous substances releases at the Onondaga Lake site and a loss of recreational fishing trips lost as a result of the releases of hazardous substances at the Site.

It is anticipated the Trustees may release a draft Onondaga Lake Natural Resource Damage Assessment Restoration Plan and Environmental Assessment (“RP/EA”) for public comment in 2017. It is not yet known what the Restoration Plan will propose or what type of recovery the Trustee might secure.

An example of a recent NRD settlement is the accord reached between Alcoa, Inc and Reynolds Metals, Co. with the federal state and tribal Trustees for releases that took place in and around Massena, New York. The Trustees’ assessment determined that sediment, fish, birds, amphibians and mammals sustained ecological and remedial injuries and calculated an estimate of the number of fishing days lost as a result of those injuries. The settling parties in Massena agreed to reimburse approximately $1 million in past assessment costs; contribute  $7.2 million for Joint Trustee sponsored Natural Resource Restoration Projects; pay $8.3 million for Tribal Cultural Restoration Projects; and purchase and donate two parcels of land to the state of New York to be incorporated into the Wilson Hill Wildlife Management Area.

Photo Credit:

Solvay Process Works: syracusethenandnow.org

Eagle: media.syracuse.com

Fish:  dec.ny.gov

 

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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Selecting An Environmental Lawyer

lawyerpic

Environmental law matters frequently involve an overlap of and interplay between legal, scientific and business concerns.  Translating science into policy and policy into law and the resulting enforcement or interpretation of the law by government agencies and the courts can leave the prospective client frustrated, confused and confounded by the law and its regulators.  Adding to that frustration is both the complexity and harshness of the law and, often times, the absence of simple, quick and easy solutions to environmental legal problems.

That being said, there is much an environmental lawyer can do to benefit the client’s interests.  Counsel is best sought, of course, prior to any actual conflict arising.  Environmental counsel can minimize potential client liability through compliance counseling, assistance with permitting, site and process auditing, the performance of pre-acquisition due diligence and the presentation of public comments or testimony prior to the enactment or promulgation of statutes or regulations which might impact the client.  Should issues of non-compliance or liability arise, counsel familiar with the specifics and peculiarities of environmental matters will likely be the best advocate for a client confronted with environmental concerns.

First and foremost, an environmental lawyer must be a good lawyer.  Ask your friends, business associates and trade organizations, state or local bar and business groups and your engineer, technical consultant or non-environmental lawyer for one or more recommendations of a lawyer or a law firm that practices environmental law.

Interview any lawyer that you might consider hiring.  Determine their qualifications and experience. Consider first the candidate’s general qualifications, including years of experience; years of environmental law experience; their professional development through organizations, attendance at seminars, written articles, or teaching; and prior experience, including past governmental positions.  Next, consider the candidate’s experience as it relates to your legal concerns.  Among the many types of environmental matters which might require the assistance of environmental counsel are the selling or purchasing of contaminated real estate, securing a government permit, notice of a government enforcement action, a neighbor who alleges that you are polluting his property or your concerns that a neighbor has polluted your property.  Determine if your candidate’s experience includes matters similar to yours.  If she has never assisted a client secure a permit or he has never defended a government enforcement action, he or she might not be the best-qualified environmental lawyer to resolve your legal matters.  Determine if the lawyer has practiced before the government agency with which you have a conflict.  While not mandatory or essential, familiarity with the specific regulator and its procedures and practices is always helpful.

Ask the candidate to explain how the law works in your particular area and what type of solutions might be available.  Remember, because environmental law involves the confluence of law, science and business, you should select a lawyer who not only understands the complex issues you are confronted with but who can communicate the issues and possible solutions in a clear, precise and understandable manner.  If you cannot understand your lawyer, you will be frustrated and the other side, whoever it may be, is also likely to be frustrated.

Inquire as to what other professionals may be needed.  Not only environmental engineers and consultants, but other legal professionals.  Often times environmental issues arise in the context of other legal conflicts such as potential foreclosures, bankruptcy or trust and estate matters.  Determine if your candidate has access to the necessary qualified professionals or if the candidate can successfully work with your existing counsel and experts.

Before engaging the services of an environmental lawyer, or any lawyer, discuss fees.  Be aware, however, that lower hourly rates do not necessarily translate into lower total costs.  Determine how your matter might be staffed, who will do the work and the likely or potential complications, which will add to the costs of a solution.  Speaking to more than one candidate is the best way to determine a realistic picture of the potential range of costs and time involved and the options and approaches to solving your problem.

In making your final choice, do not disregard your instinct – select the lawyer you are most comfortable with and the lawyer you trust.  Be wary of promises that are easy to make but difficult to keep.  Make sure your lawyer listens and understands your goals and objectives but, at the same time, listen to what your lawyer says I can and cannot do for you.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York, and is listed in The Best Lawyers in America.

Photo: news.bbcimg.co.uk

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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Why You need an Environmental Attorney

environmental-lawyer

With so many practiced attorneys, you may be asking yourself why you need to retain an experienced environmental attorney?

Failing to consider that question can become an expensive mistake.  No one wants to discover a costly environmental problem after closing or learn their indemnification agreement does not address unanticipated costs and expenses or operations cannot meet the requirements of the permit you just received. An environmental attorney can help business executives and managers navigate environmental pitfalls, provide valuable advice early in the planning and decision making process, and if necessary, resolve disputes with regulators, neighbors and environmental groups.  Indeed, there are many reasons for choosing an environmental attorney.

  • Environmental attorneys speak the language.

Have you ever talked with a government regulator or a consultant and heard about USTs, APARs, MSDs and HAZWOPERS?  Your environmental attorney knows the acronyms and the regulatory systems behind them.  He or she can speak with regulators and consultants in their own language and help achieve your goal of getting the job done in the most efficient manner.

  • They know the law.

Just like tax law, environmental law is a maze of statutes, regulations, guidance documents and preambles in the Federal Register or guidance issued by state regulators. A hazardous substance is not the same as a hazardous waste or a hazardous chemical or a toxic chemical or a hazardous material.  Each of these terms has a very specific meaning and applicability.  Each term has its own set of defining regulations and applicable obligations.  An environmental attorney can help you sort out what belongs where.

  • You can save money.

Unfortunately, if you pay for the discount Phase I environmental property assessment and fail to check credentials or read the engagement agreement or the final report, you may not get anything for your money except a big bill for the problem that was not found or properly explained.  A Phase I investigation report should follow a very specific format established by ASTM (the American Society of Testing and Materials) and Environmental Protection Agency regulations.  You may have saved money, but if the report does meet the requirements for the “innocent purchaser defense” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), you may have wasted your money.  Moreover, the report may have missed something that will end up costing much more than any initial savings, such as the presence of wetlands or asbestos-containing materials. Having an environmental attorney assist in the environmental due diligence process assures that the review will meet the applicable legal  Environmental attorneys can also assist in reviewing and finalizing drafts to help ensure the final product is one you can share with a regulator or lender or if necessary, keep confidential pursuant to the attorney-client privilege.

  • To save even more money.

For certain properties and in certain transactions, it may not be efficient to start with a Phase I investigation.  You may need to look at process compliance issues and not just whether there have been past releases of hazardous substances.  Environmental attorneys can assist with scoping a project, knowing the laws and your goals, which ultimately gets you the information you need and often in a more economical fashion. If you are buying a permit you need a specialist who understands what your needs are and whether the existing permit has been complied with by the seller and will work for the purchaser. A permit whose conditions you cannot meet will become a regulatory nightmare.

  • Environmental attorneys are specialists.

Just 30 to 60 minutes of review of an asset purchase or stock purchase or other agreement may end up protecting you much more than the cost of that review.  The review of documents and assisting with the drafting of environmental and related provisions (indemnities) is precision work.  Just as you would not hire your family doctor to do your heart surgery, you should not skip having an environmental attorney involved if there are any possible environmental issues in a deal.  If the environmental attorney has reviewed the due diligence materials and knows your goals, the cost of the review will be money well spent.

  • Environmental attorneys know the landscape and what potential issues exist. 

Sometimes parties assume that if there is a Phase I assessment, the environmental issues have been addressed.  The problem with this assumption is that there is an entire world of environmental statutes and regulations at every level — federal, state and local.  For example, in an acquisition or financing, the scope of issues to be addressed should include, among others, compliance issues, permit transfers, and required notifications.  There are air, water, waste and possibly other areas to consider.  Some permits are not transferable or require up to 30 days notice to a regulator prior to transfer.  Not planning for these contingencies in a transaction may end up costing the client money and add to frustration levels.

  • Environmental attorneys can make enforcement issues easier to manage. 

If you get a notice of violation or have a compliance issue, an environmental attorney, familiar with the statutes and regulations, can guide you through the maze and assist with your defenses and negotiation with the agency.  Environmental attorneys know the regulations and the administrative process.  They know what defenses or mitigating factors may apply. They know if the regulator has made a mistake and whether the issues being raised are applicable to your circumstance. More than once we have found the regulator is wrong and the client is right. An environmental attorney, you recall, also speaks the language and can help you understand the system and your potential pathways to resolution.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. He is a former Senior Trial Attorney for the U.S. Department of Justice, Environmental Crimes Section; he has served as an adjunct faculty member at the Syracuse University School of Law and has been listed in The Best Lawyers in America. He may be contacted at 315/445-1700 or at kmurphy@wladislawfirm.com

Photo Credit:  www.calvin.edu

 

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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