Defining and Understanding What Environmental Risk Is

Congratulations on purchasing your new private or commercially-purposed land.  There are lots to celebrate, such as owning a cozy place to call home or an enterprise built to produce a sizable income.  Either way, the bright future of ownership can soon dim for those who don’t understand the environmental risk involved in property ownership.  If an environmental need demands address, who is financially responsible?  It could be you.

Considering Environmental Risk

Let’s assume you happily purchased a piece of land, the home of your new intended law practice.  The real estate formerly hosted a recycling plant, but operations had closed years ago, making the unused land seem like a good investment.  One year into ownership, a surveyor informs your property needs to be treated; it’s posing an environmental risk.  You have a choice of paying high prices for treatment or face harsh fines and potential condemnation.

These situations happen more often than most may assume; like incidents involving severe weather, such things are not considered until disaster strikes.

Federal Statutes

A number of federal statutes direct legal course of action regarding environmental risk and responsibility of land ownership.

–       The CERCLA statute addresses the cleaning of hazardous substances

–       The RCRA addresses the proper handling of solid, hazardous waste from its inception to disposal

–       The TSCA regards overseeing and controlling the manufacturing, processing, distribution, and use of chemicals

–       The CCA and CWA regulate practices, ensuring the maintenance of clean air and water

Avoiding Risk

An owner can minimize the risk of environmental liability by complying with various regulations, seeking environmental audits, learning more about environmental insurance, better understanding their respective state’s acts and regulations.

Aligning oneself and business with clarity on statutes and state laws enacts a better defense case in the event of litigation.  For example, a defendant may escape liability and pending penalties under CERCLA if one can prove the release of pollutants was a result of “acts of Gods” or “acts of war.” (2)

Third Party Defense

Another defense angle, leveraged against environmental responsibility, is third-party defense.  A 1989 case, United States v Marisol, Inc, revealed the defense must express four elements to its case: (2)

–       A third party was sole cause to release of toxic fumes

–       The third party had no employment or relationship with the defendant during the incident

–       The third party did not cause the hazard while presently under direct or indirect contractual obligations related to the defendant

–       The defendant exacted due care, taking precautions related to impending hazards

Environmental Insurance

Former and to-be owners may purchase environmental insurance, avoiding responsibility related to environmental hazards.  Insurance holders can factor particular exclusions, avoiding some costs related to pollution.  To avoid the risk of losing an associated case, defendants must prove the contamination was sudden or accidental.  In some cases, owners are completely free of liability if they can prove the definition of the ‘pollution’ is ambiguous enough to warrant clemency.

The Best Defense

Perhaps the best defense against liability is finding a defense attorney well acquainted with your particular state’s laws as well as overarching federal laws related to environmental litigation and private and commercial cases.  Don’t react; rather, be proactive in seeking further understanding and counseling of your specific situation.

Tom Grant  is a business and environmental consultant. He enjoys sharing his insights and experience through blogging for a variety of websites. Click to learn more about Environmental Data Resources.