Question: Businesspersons today increasingly face the threat of severe civil or criminal penalties if they violate environmental laws and regulations. Thus, it is crucial to be aware of what those laws and regulations are, how to monitor changes in them, and when to consult with an attorney during the normal course of business. Consider some areas of concern that affect businesses. Factors to Consider When Purchasing Business Property When purchasing business property, keep in mind the environmental problems that may arise. Realize that it is up to you as a purchaser of the property to raise environmental issues-sellers, title insurance companies, and real estate brokers will rarely pursue such matters. (A bank financing the property may worry about the potential environmental hazards of the property, however.) As a purchaser of business property, you should find out whether there are any restrictions regarding the use of the land, such as whether it can be cleared of trees for construction purposes. The most important environmental concern, though, is whether the property has been contaminated by hazardous wastes created by the previous owners.
Investigate Land-Use History Purchasers of property can be held liable under Superfund for the clean-up of hazardous wastes dumped by previous property owners. Although current property owners who pay clean-up costs can sue the previous owners for contribution, such litigation is expensive and the outcome uncertain. Clearly, a more prudent course is to investigate the history of the use of the land prior to purchasing the property. You might even want to hire a private environmental site inspector to determine, at a minimum, whether the land has any obvious signs of former contamination. Investigate and Correct Environmental Violations Today's companies have an incentive to discover their own environmental wrongdoings. As mentioned in Chapter 6, the federal sentencing guidelines encourage companies to promptly detect, disclose, and correct wrongdoing, including environmental crimes. Companies that do so are subject to lighter penalties for violations of environmental laws. Thus, a company would be well advised to conduct environmental compliance audits regularly. Small businesses (those with up to one hundred employees) will find it particularly advantageous to investigate and correct environmental violations. Under current EPA guidelines, the EPA will waive all fines if a small company corrects environmental violations within 180 days after being notified of the violations (or 360 days if pollution-prevention techniques are involved). The policy does not apply to criminal violations of environmental laws or to actions that pose a significant threat to public health, safety, or the environment.
CHECKLIST FOR THE BUSINESSPERSON
1 If you are going to purchase real estate, use land, or engage in activities that might cause environmental damage, check with your attorney immediately and investigate the land-use history.
2 If you want to avoid liability for violating environmental regulations or statutes, conduct environmental compliance audits on a regular basis.
3 If you are ever charged with violating an environmental regulation or law, immediately cease the activity you are being charged with and contact your attorney.
4 In general, environmental law is sufficiently complex that you should never attempt to deal with it without the help of an attorney.