Yes, you need environmental counsel when any of the following arise:

• You want to obtain “bona fide prospective purchaser protection” for your property acquisition but are not sure what is required.
• You need assistance in drafting environmental provisions in a contract of sale in order to protect yourself from risk and future liabilities.
• The parties to a commercial real estate deal cannot figure out a fair method for allocating the costs to clean up environmental contamination and need creative, workable solutions.
• “Everyone knows” the property is contaminated because of a leaking tank or an asbestos problem, but no one knows what to do.
• The lender tells you a Phase I environmental site assessment needs to be prepared, but you know you shouldn’t rely on a Google search to find a qualified environmental consultant.
• The Phase I Environmental Site Assessment report tells you there are “recognized environmental conditions,” and you do not know how to proceed or if you should proceed.
• A Phase II Environmental Site Assessment confirms the presence of contamination and you do not know how to proceed or if you are required to report the findings to anyone.
• You do not know whether environmental insurance is available to resolve some of the difficult problems in the deal.

You need an environmental attorney when you or your client wants to know:

• Whether and how development of the property could meet the requirements of the New York State Brownfields Cleanup Program.
• How to get the best estimates of the costs of, and how to evaluate the adequacy of, proposals to clean up the property.
• Whether there is a potential claim against the prior owner for failure to disclose an environmental liability that he knew or should have known about and should have disclosed to the client/purchaser.
• If there is a viable claim against prior owners in the chain of title.
• Whether there is a potential claim against an adjacent property owner for contamination on the property that the client now owns.
• What the scope of your liability is for property damage and personal injury to nearby properties from contamination migrating from your   property before and after purchase.
• If completion of a Phase I ESA is all that needs to be done to obtain “bona fide prospective purchaser” protection.
• How to get a “no further action” letter from a government agency to meet a lender’s requirements.
• What the impact of contamination is on the value to your property.
• Whether, even after cleanup, there is an actionable “stigma” attached to the property.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you have questions regarding any of the above, or if you would like assistance in solving other environmental concerns, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm.