This may be alarming to you if you own a business: any business owner — that’s right, any business owner — can be cited by an environmental agency.
Someone who owns a dry cleaner, gas station or an auto repair shop is more likely to receive such an unwelcome summons than, say, a florist or a clothing store owner. However, environmental agencies like the EPA or Indiana Department of Environmental Management exist to find pollution and get someone to clean it up. The current owner of a business property is usually held responsible, even if a previous owner caused the pollution. Owners can be dinged — in some cases — even if the pollution originates on another nearby property.
So every business owner needs a plan to react to an environmental citation. First and foremost; a business owner needs a trustworthy team to help him or her locate pollution and determine who really should be held responsible.
By "team," I mean environmental experts — a chemist, hydrologist, field engineer — and a person who pulls together and interprets all the data. The team can be one of these people or several. This team — known as your environmental consultant — should be on the same page as your attorney regarding your cleanup strategy. And your team needs to be strong enough to give you the truth and their best professional opinions, even when they deliver bad news.
Dealing with environmental contamination is never welcome, but it can be an opportunity to make decisions that you may not have considered. Such as, "what do I want to do with the business?" Or, "what about the property?"
Selecting the right environmental team allows you to focus spending on the activities that will give you the best chance of success. If you do not have the right team, your business could be interrupted by drilling activities, or face a seemingly never-ending parade of distractions. With the right team, you don’t need to become an expert on environmental matters or attend a chemistry class – that’s what you hire experts for. You should be able to focus on your business, while your team moves your project through to conclusion.
Now that you understand the importance of having the right team, the following things can happen that will help you evaluate potential project funding, health risks and a timeframe for completion:
All responsible parties (RPs) have to be identified (current and past owners and operators);
Your historical insurance or the insurance of other RPs should be evaluated and, if possible, used to fund required activities;
Assess the immediate health exposure risks to neighboring building occupants (commercial and residential);
Investigate the parameters of the source area (size, depth and concentration of the contamination);
Evaluate the magnitude of the offsite migration;
Develop preliminary remedial alternatives and cost estimates;
Don’t be misled: cleaning up pollution requires the owner to be “hands on” all the way. But a good team helps. Cleaning up soil and groundwater contamination from a release of oil or chlorinated solvents such as tetrachloroethylene (PCE) and trichloroethylene (TCE) from dry cleaning or manufacturing operations — even if it occurred decades ago — can be time consuming, complicated and expensive. Even if you run a “clean” business, your parking lot could be a pollution source. Run-off from rain and snow contains oil, gasoline and de-icing solutions that eventually find their way into the ground and the water table below.
Keep in mind that bankers are reluctant to finance properties in jeopardy, even if you just want to upgrade the property and then sell it.
All these are reasons why it is important for you to build the right team to represent you.
The best thing you can do now is to evaluate whether you have the right team on your side. Make sure that the consultant and the attorney are keeping you apprised of the project and that you have a realistic expectation as to the schedule for satisfying the environmental agency. The right team is built on experience, trust and integrity. Your team needs to protect you while you run your business.
Stephen Henshaw is chief executive officer of Enviroforensics.