My post listing the top 5 misconceptions about environmental law received positive feedback, so I am continuing it in this post, listing misconceptions 6 through 10. The top 5 were statements that many transactional attorneys believe, but are false. Misconceptions 6-10, on the other hand, are sometimes true.
6. The investigation found contamination, so we must report it to the State. That statement is sometimes true, but not always. Among the factors that go into determining whether there is a reporting requirement are: (1) what was found (for example, petroleum spills are treated differently from releases of other chemicals); (2) who you are (the owner or operator of a facility is treated differently from others with knowledge about the facility); and (3) your level of knowledge (do you know, have reason to know or suspect that you know what happened).
7. The investigation found contamination; therefore, remediation is required. Again, it depends. It depends on factors such as what substance, the concentration of the substance found and the land use. Land use plays a role because the State expects residential properties to be cleaner than commercial properties.
8. If the government says I have to do it, then I have to do it. Again, it depends. It depends on where you are in the process – was this an order that came at the end of a hearing or a statement by an individual government official at the beginning of a process. It depends on the context – sometimes what you are getting is one individual’s opinion, not a view of the agency based on the regulations. And, it depends on what the statute and regulations say. If the statement is not consistent with the statute and regulations, then even if it sounds like official policy, it could be simply wrong.
9. My environmental consultant can tell me what the facts are and what the law requires in response to those facts. The first part could be true; the second part is unlikely to be true. Environmental consultants are experts in determining and interpreting the facts. They tell you what is. They also have experience that gives them an idea of what the legal requirements are. For the most part, however, they are not licensed to practice law and to accept legal advice from someone not licensed to practice law is or can be dangerous.
10. This is a clean site. The term “clean” has no real definition in environmental law. Indeed, the Supreme Court recently agreed to hear a case which raises the question of how clean is clean. EPA required a party to clean up a site and specifically required the party to remove soil with concentrations of greater than 250 parts per million of arsenic. After the cleanup was complete, property owners sued to require more remediation; to require the site to be cleaner. I recently reviewed a draft environmental report that said the site was clean. I asked the consultant how he would respond if asked what definition of clean was used. He deleted the sentence.