I am starting to prepare course materials for a course entitled “Environmental Law for Non-Environmental Lawyers.” The purpose of the course would be to dispel many of the misconceptions that people have about environmental issues. As a starting point, here are 5 easy ways to tell that the person talking about the environmental issue has no clue:
1. “There are no hazardous substances in the building.” This statement is almost always false. The ink in your printer is likely to contain hazardous substances. Many common cleaning products contain hazardous substances. Building materials often contain hazardous substances. Better to say that our investigation did not find the presence of hazardous substances in concentrations that require remediation or further investigation.
2. “We need an investigation to determine whether there are environmental violations.” No, what you want to investigate is whether there are environmental conditions that you should be concerned about. Most of the most expensive remedial projects arise out of conditions that were created before there were environmental laws. Thus, there can be no violations at the site, but at the same time, the owner of the site can be responsible for millions of dollars of remediation costs.
3. “The land is in compliance with all environmental laws.” This is similar to the prior case. People have to comply with the law. Land generally does not. Thus, the question that should concern a prospective purchaser is not so much whether the law has been complied with, but whether there re conditions at the site that need to be remediated.
4. “I don’t want to be in the chain of title, because everyone in the chain of title is responsible for the cleanup.” No, chain of title is not really the issue. The people who can be compelled to remediate an inactive hazardous waste site are: the current owner or operator, the person who was the owner or operator at the time of the release of hazardous substances, the person who arranged for disposal of the hazardous substances and a transporter who selected the disposal site. Thus, chain of title can be relevant (because current owner and owner at the time of disposal have liability), but there are people in the chain of title who have no potential liability and people with liability who are not in the chain of title (e.g. a tenant as operator)
5. “We have a clean Phase I, so we know the site is clean.” No, a clean Phase I does not tell you that. A Phase I site assessment looks at past uses of the property and records related to the property to determine whether there are conditions that should be investigated. It is not an investigation of soil or groundwater and regardless of how good the Phase I report sounds, there is always a risk that there is some condition that is not revealed by the site history or the available records.