|
|
|
|
|
|
|
A Primer on Environmental Liability
- by William C. Gable
 NOTE: The following is provided for general
information purposes only. This information should not be cited
or relied upon as legal authority nor does it substitute for the
advice of competent professional counsel.
As a general working definition, an environmental liability is a
legal obligation to make a future expenditure due to the past or
ongoing manufacture, use, release, or threatened release of a
particular substance, or other activities that adversely affect
the environment and/or human health. The obligation may be a
current obligation or a potential obligation if it depends on
future events or a law or regulation that is not yet in effect. A
property owner has an opportunity to prevent or mitigate a
potential liability obligation in order to avoid an adverse
impact.
The following six categories or types of environmental
liabilities are generally recognized:
Compliance Obligations. These obligations arise
from laws and regulations that govern the manufacture, use,
disposal, and release of chemical substances and other activities
that adversely affect the environment and/or human health.
Remediation Obligations. These obligations relate
to the cleanup of a property or site contaminated by chemicals or
other substances that pose a risk to human health and the
environment. Among the types of environmental liabilities, remediation
obligations can present a property owner with particularly high
risk exposure since an owner may be liable for cleaning up
contamination at inactive unregulated sites, formerly owned or
leased properties, sites where a business sent wastes for disposal
as a third-party, and property a business acquired but did not
contaminate. Thus, a business may have remediation obligations
for currently known contamination and potential remediation
obligations for future unknown contamination.
Fines and Penalties. Any property owner not in
compliance with applicable statutory or regulatory requirements
may have obligations to pay civil and criminal fines and
penalties as well as expenses for projects agreed to as part of
any settlement for noncompliance. Fines and penalties can range
from thousands of dollars to millions of dollars per violation.
Compensatory Damages. Under some state and federal
statutes as well as common law, a property owner may be obligated
to pay compensation for "damages' (also known as
compensatory damages) incurred by individuals, their property,
and businesses from the use or release of toxic substances or
other pollutants. This is also referred to as toxic tort
liability. Compensation costs can be fairly minor or quite
substantial depending on, among other factors, the number of
claimants, the nature of the claim, and the legal defense costs
incurred in handling these claims.
Punitive Damages. Payments for punitive damages can
be imposed in addition to compensatory damages as a means to
punish and deter conduct viewed as showing a callous disregard
for others or being grossly negligent. Although rarely assessed,
punitive damages are often many times larger than compensatory
damages.
Natural Resource Damages. Liability for
natural resource damages (NRD) arises from injury, destruction,
loss, or loss of use of natural resources (e.g., plants,
wildlife, land, air and water) that do not constitute private
property. Natural resources must be controlled by federal, state,
local, foreign, or tribal governments.
If you have any questions or concerns regarding a potential
environmental liability for your case please contact the
professionals at AES. Our experience in dealing with state and
local compliance issues enables us to provide you with sound
advice regarding your specific concerns.
|
|
|
|
|
|
|
|
|
|
Asbestos and Liability
-by Peter Voci, CABI
 Almost twenty five years ago, the Asbestos Hazard
Emergency Response Act (AHERA) was enacted to require inspection
for asbestos and implementation of appropriate response actions
in schools (K-12). Failure to comply with the requirements of
AHERA may result in asbestos exposure of students, school
district employees, and ancillary personnel as well as fines and
lawsuits against the school district.
It is interesting to note that even after almost 25 years, AHERA
and countless newspaper articles, television programs, increased
awareness of the dangers of exposure to asbestos that we still
hear of schools, school districts, and commercial organizations
failing to comply with AHERA. There are many misconceptions about
asbestos. A few months ago I received a call from a woman who
stated that her neighbor believed that the siding on her house
contained asbestos and he took it upon himself to cut off a
section of her siding, without her permission, and took it to the
police station as "evidence" for them to use in their
prosecution of her. The woman was terrified that she was going to
be held liable for asbestos exposure because her siding contained
asbestos. After calming her down, I told her that it is not a
crime if her siding was asbestos containing and that her
neighbor's act of vandalism to her house was something the police
might be interested in, not whether or not some of the building
materials in her home contain asbestos.
The first step in reducing exposure to asbestos and the
possibility of a lawsuit should be to have a properly trained and
certified asbestos building inspector complete an asbestos
inspection prior to any demolition and/or remodeling. ( In
Pennsylvania, the Department of Labor and Industry (PA DOLI) is
responsible for issuing the asbestos building inspector certification.
Students who participate in the class must pass a written
examination in order to receive their certification.) Once the
asbestos survey is completed and the laboratory results of the
collected samples detect more than one percent of the fibers in
each sample to be asbestos fibers, the material from which that
sample was collected from is considered to be asbestos, by US
standards. The key here is greater than one percent asbestos
requirement. If the sample result is exactly one percent (or
less), the material is not considered to be asbestos containing
and can be disposed of accordingly.
The asbestos building inspector then prepares a report that
details the inspection, lists the samples, locations, and
quantities of materials from which samples were taken, and
describes which materials are classified as asbestos and what
type of asbestos they contain. Finally, a proper asbestos survey
report will include a detailed list of recommendations that must
be complied with in order to avoid asbestos exposure from
occurring.
The consequences for school districts and commercial entities for
not properly handling asbestos exposure are immense as are the
consequences suffered by individuals who develop health problems
related to asbestos. If asbestos exposure is not handled
properly, many individuals and families are affected not just
those who develop asbestos-related health problems. In many
cases, the sizes of the settlements are large enough to cause
many corporations to lay off employees and in some cases, cause
companies to enter into bankruptcy.
If you are planning on remodelling a property, or have reason to
suspect that your property has asbestos containing materials,
please contact the experts at AES. We have the knowledge to get
the job done.
|
|
|
|
|
|
|
|
|
|
Understanding Environmental
Liability Issues in Real Estate Transactions
-by Jude Horton
 Doing one's due diligence is now more important than
ever. Some view this step with trepidation, while others
recognize it for what is - a vital and necessary part of the
commercial real estate transaction. It is the final step in
protecting your, and your clients', legal environmental
liability. In order to understand the liability issues associated
with a Phase I ESA, one must fully understand what is involved in
the process.
A brief explanation of a Phase I ESA is "a thorough,
non-invasive investigation of past and current actions or
situations that have an adverse and / or potentially adverse
impact on the future occupants of the property." In other
words, the Environmental Professional does the research that
measures the real and / or perceived environmental health of the
property.
A Phase I ESA must be performed by an Environmental Professional,
or EP. To be qualified as an EP, one must have the appropriate level
of education in applicable areas and a predetermined amount of
relevant experience. This level of qualification is important in
that the EP is responsible to form and report his or her opinions
and conclusions regarding and Recognized Environmental Conditions
(REC) associated with the site.
A thorough investigation includes -
- Historical
data of the site and outlying areas. (Were there any
reported releases? Where are nearby underground storage
tanks located? Any leaking storage tanks? Are there any gaps
in the data? - among other things.)
- Aerial
photos or other historical information source references.
- A
physical walk of the site.
- Interviews
with past and present owners, operators and tenants, as well
as neighbors if property is abandoned.
- A
User Questionnaire to be filled out by the potential buyer.
- It
is important to note that ASTM guidelines state that the EP
should be given 20 business days to complete this
investigation.
All these things lead to a well-informed opinion on the part of
the EP. Should any of the ASTM guidelines not be followed, and a
property is found to have been contaminated, all involved parties
may be at risk for legal action.
Considering the liability issues involved, it is of the utmost
importance to choose the right EP for the job. We at AES have a
great deal of experience with environmental site assessments, and
would like to put that experience to work for you. Call us toll
free at (888) 844-2371 with your environmental challenges.
|
|
|
|
|
|
|
|
|
|
Seeking Employment?
- By Brian J. Beahan, P.G., CHMM, President
 We are always interested in speaking with qualified
professionals to join our team. We appreciate your referrals of
business and now are seeking your referrals for qualified
environmental and geologic consulting professionals. If you know
of anyone who is seeking a change and a challenging new direction
in their career, where creativity and solutions-oriented thinking
really make a difference, please pass on our contact information.
Find
out more....
|
|
|
Our customers have approached us with problems, we've
understood what needed to be done and we've provided appropriate
solutions. Our mission statement, indeed our company as a whole, is
centered on meeting this objective. May we put our quality,
client-centered environmental solutions to work for you too?
On behalf of the staff of Alternative Environmental
Solutions, Inc., I invite you to experience the value we add to
your business.
Sincerely,
Brian J. Beahan
Alternative Environmental Solutions
email: aes1@altenv.com
phone: 717-517-5000
fax: 717-517-5004
web: http://www.altenv.com
|
