What Should You Do When You Find Out Or Suspect Your Business Property Is Contaminated?

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Today, federal, state and even local agencies in New York enforce environmental laws and regulations designed to help keep the environment clean.  Companies find it makes good business sense to have sound environmental practices.  There is a culture of environmental awareness and recognition that we should be protective of the environment.

It wasn’t that long ago, however, that this wasn’t the case: many businesses didn’t see the value in being good stewards of the environment and engaged in less environmentally-sensitive practices.  As a result, in New York, with its legacy of industrial activity, many business properties are contaminated.  Often times, the contamination is decades old and the current landowner has no idea that the contamination exists.

There are many trigger events that lead to the discovery of contamination, or suspected contamination, on a property.  Some common ones are:

  • a prospective sale of a property
  • new development or renovation of a property
  • an environmental audit of the property
  • getting a mortgage on the property
  • the discovery of contamination on adjacent property.

In each of these instances, some event causes either an inspection of the property, such as the need for an environmental site assessment, or some physical activity on the property, such as construction, demolition or sampling.

So what should you do if you discover you might have contamination on your property?  Like many things in life, the answer is it depends.  If you discover an active, ongoing source of contamination, you almost certainly have a fairly immediate reporting obligation, either under a statute/regulation or an environmental permit.   If you uncover what looks like it could be historic contamination but are unsure, your response can be more measured.

If you discover or suspect you have discovered contamination on your property, here are some actions you should consider taking:

  • Contact your legal counsel to discuss your options. How you respond to the discovery of contamination or suspected contamination can lead to a major headache with significant expenses, if not done correctly.  You may spend some money on getting sound legal advice, but you could end up paying out more if go at it alone.
  • Find out your reporting obligations right away. Different situations can call for different reporting requirements.  Some reporting requirements require almost immediate reporting and the failure to report could result in a substantial civil penalty or even criminal charges.  Experienced counsel can help you understand what these obligations are.
  • Take a look at your insurance coverage. Environmental contamination often is excluded from coverage, but not always.  You should review your coverage, with your insurance broker or counsel if necessary, to determine whether your business may have coverage that can help pay for a clean-up.
  • Understand what your property documents say. If your business purchased the property, look at the purchase documents to see what they say about contamination.  Often times, especially in a more sophisticated transaction, risk of contamination is allocated in the transaction documents.  If your business leases the property, see what the lease says.  There may be a provision that discusses what happens if contamination is found.
  • Consider hiring an environmental consultant. For many reasons, you may want to know what you can about any contamination or suspected contamination you find.  For example, if you suspect the contamination came from a neighboring property, you probably want to determine its source so you can determine who may be responsible for remediation.  Be aware that you may have to act on issues your consultant uncovers.
  • Look into whether you can recover or demand cleanup costs from a responsible party. Often times, more than one party is responsible for contamination at a property.  Considering the fact that cleanups of these properties can be very expensive, even if your business shares some responsibility for a cleanup, you should consider whether other responsible parties should share these costs.  Talk with your counsel about your options if you suspect another party or other parties might be responsible for any contamination.

No business wants to find it has or may have contamination on its property.  If it happens, however, your goal should be to consider taking these steps to help minimize your risks.

Why You need an Environmental Attorney

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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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What to Do When an Agency Visits for an Inspection

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You’re working in your office when suddenly one of your employees is at your door: there are a couple of agents from the NYS Department of Conservation at your facility, here to conduct an inspection because the agency received a complaint about your business.  What should you do?  What can you do?  If you manage the visit correctly, then maybe it’s just a minor disruption.  If you don’t, you can be looking at a major headache.

Here are some big picture items to keep in mind.

Understand who is there and why they’re there.  The example used here is the DEC, but the agency at your door could be OSHA, or EPA or a host of other regulatory or investigative agencies.  Find out who they are and why they’re there.  Certain personnel—security guards, a foreman—will be the first to interact with the inspectors.  They should request credentials and ask about the purpose of the visit and find out if they have a search warrant.  They should contact management with this information.  Most importantly, they should be professional and courteous—this is a serious event with potentially significant consequences—and direct any questions to management.

Determine who you want present.  Depending on the nature of the inspection, you may want counsel present, or at least available by phone if that’s at all possible.  In any event, you want only the right people present with the inspectors.  While you want to cooperate with reasonable requests, there’s no need to have more people than you need present to answer any questions.  Answers can have far reaching consequences, which you may not know at the time.  A speculative answer volunteered by an employee trying to be helpful could end up hurting, not helping, your cause.  Limit your company’s presence to those with knowledge or a need to be present.

Document the event.  Arguably, nothing is more important than documenting the inspectors’ visit.  Know who was present and when they were present.  As soon as it is practicable, document the questions the inspectors asked, the answers they were given, and the parts of the facility they visited.  Keep notes and photograph anything an inspector photographs.  If an inspector requests or takes records, document what was requested or taken.  If the inspector takes samples, see if you can get split samples.  Document as much as you can, even if it seems unimportant at the time.

You may not have to turn it over, but then again maybe you do.  Even with a search warrant, inspectors do not have carte blanche to inspect anything and everything at a facility or to take anything they wish.  Search warrants are powerful investigative tools, but they are typically limited in time and space and must set forth the particular items to be seized.  A search warrant for company records normally doesn’t give investigators the right to seize an employee’s private iPad kept at his desk.  That said, some federal (e.g., Clean Air Act) and state (e.g., Oil Spill Act) environmental laws require facilities to keep records showing their regulatory compliance.  The inspectors don’t need a warrant to review those records.

Read it carefully.  Sometimes an inspector will ask someone to sign a document after the inspection is completed.  Think about this request carefully because it can have serious legal implications.  Whatever the document is, read it closely before signing.  If you feel you cannot sign it, you probably should not.

Have a plan in place.  Finally, if you are a regulated industry or a workplace, you know that an investigative agency can pay you a visit.  Be prepared for it.  Have protocols in place for dealing with an inspection.  Have your employees know what they should do, how they should act and who they should contact if an inspector shows up at your facility.  Make sure management knows what it should do, including who should document the visit and who it might contact about any inspection.  Better to be prepared and not be inspected than to have an inspection and not be prepared.

The long and short of it is that being the subject of an agency investigation can be a nerve-wracking experience, but it doesn’t necessarily have to be.  It is all about preparation and sticking to protocols.  If you have a question about how your facility should prepare for an agency inspection, or if you’ve already been subject to one, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

When should you report a petroleum spill to the NYS Spill Hotline?

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Petroleum spills are a fairly common occurrence in New York State.  By the NYS Department of Conservation’s own estimate, it receives about 16,000 reports annually of spills through its Spill Hotline (800-457-7362).  While most of these reports are for releases of small quantities that are cleaned up quickly, some are substantial and require a significant cleanup.

 

The obligation to report petroleum spills is generally covered by New York’s Petroleum Bulk Storage (PBS) regulations and New York’s Oil Spill Act, which is also known as the Navigation Law.  Section 613.8 of the PBS regulations, which essentially is limited to limited to regulated bulk tanks, requires “[a]ny person with knowledge” of a petroleum spill to report it to the Department within two hours of discovery through the Spill Hotline.  The reporting requirement under Navigation Law § 175 also requires reporting within two hours of discovery, but applies to “[a]ny person responsible for causing a discharge.”  It is not limited to bulk tanks, but covers “discharges,” which essentially are defined by Navigation Law § 172(8) as releases of petroleum into State waters of the state or onto lands from which the releases might flow or drain into State waters.

 

Keep in mind that the penalty for failure to report a spill is pretty severe: violations are an offense punishable by a $25,000 fine under Navigation Law § 192.

 

Fortunately, the Department recognizes that it doesn’t make sense to burden the Spill Hotline with minor and not a threat to the environment.  A spill doesn’t have to be reported when all of the following conditions are met:

 

  • The quantity is known to be less than 5 gallons; and
  • The spill is contained and under the control of the spiller; and
  • The spill has not and will not reach the State’s water or any land; and
  • The spill is cleaned up within 2 hours of discovery.

 

A spill is considered to have not impacted land if it occurs on a paved surface such as asphalt or concrete.  A spill in a dirt or gravel parking lot is considered to have impacted land and is reportable.

 

While most times reported spills require little more than a cleanup and signoff from the Department, sometimes spills require a substantial cleanup or management.  In those cases, the Department will send a demand letter for the cleanup to who it believes is the discharger.  Often times, the issue of who really is the discharger is complicated, which can be a real issue when cleanup costs, which can be considerable, are at issue.  If the Department considers you or your company to be a discharger, you may want to seek legal guidance.