So we’ve talked a lot about how to avoid environmental liability when buying or leasing real property. The next question is, how do I know if I have an environmental problem, and when do I call in an environmental lawyer? We lawyers all want to be wanted, so the answer is, as soon as you contemplate the transaction.
Actually I jest; it is more than just because we want to be wanted. There really are good reasons for getting the environmental lawyer involved. Most importantly, is that the environmental lawyer can really help when the property has any number of conditions which indicate a potential for problems. So what is on the list? If you have:
- any environmental studies for the site, including audits, Phase I or Phase II investigations or sampling of any media;
- any evidence of stressed vegetation, stains on the soil or floors of the property;
- any underground, or above-ground storage tanks, unexplained pipes, such as vent or fill pipes, or pipelines on the property;
- any groundwater wells, any lakes, lagoons, impoundments, pits, septic systems, sumps, trenches, ditches or other open drainage conveyances, floor drains, dry wells, or catch basins;
- any cattails or other wetland plants, wetlands, flood plains, coastal areas or habitats for an endangered species;
- any historical, Native American or archeological sites;
- any operating businesses, or are any operating businesses contemplated, or do any tenants operate any businesses with emissions, permits, msds’ public filings or any waste, wastewater discharges, water discharges from the property, equipment washing or metal cleaning, or paint booths;
- any zoning or land use limited to commercial or industrial uses;
- any buildings with fireproofing, thermal insulation, boilers, ceiling tiles, vinyl floor tiles, dry wall, dry wall tape, plaster, textured paints, roofing shingles, felt, tar, flashing or mold problems;
then you probably have some hidden environmental issues or liability.
While every property and transaction is unique, there are certain situations in which an experienced attorney can help mitigate those problems through the documents or by negotiating a resolution of the issue before the closing. But many of the issues must be addressed early on because waiting will make the negotiations more difficult, or you may find you are stuck with the problem because you waived the issue by not raising it in a timely fashion. Therefore, involving your attorney early in the process may limit the potential for unforeseen costs and problems down the road.
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