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 firstname.lastname@example.org
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Kevin C. 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.