Steps to Avoid Environmental Contamination
Jo M. Flannery, Esq.
Many properties in and around the State of Washington have some level of historical contamination. Two common situations arise in connection with already contaminated land. First, in a prospective purchaser situation, a new purchaser coming to a property1
should always perform due diligence which includes inquiry
and investigation into prior uses of the property and any signs of contamination, among other things. This is known as a Phase I. A Phase I investigation and any appropriate, indicated follow-up investigation, prior to purchase, are required if a prospective purchaser is to have an opportunity to claim “innocent purchaser” status to avoid personal liability under our State and Federal environmental statutes. The second situation arises when an owner encounters contamination that was previously unknown, but they already own the property. Then avoiding a share of liability for any clean-up is far less likely, depending on the facts and the origin of the contamination. A third situation can arise, where a fresh spill occurs. A significant chlorine spill at a sewer drain that outfalls at a lake, heating oil pumped into a vent, not the fill pipe, and other unfortunate accidents do occur.
In all three of these situations, once a spill of a hazardous substance or the presence of contamination is identified there is a process to go through, usually in communication with the State Department of Ecology, although other agencies can be involved depending on the location and contaminant of concern2
. The timing
and form of reporting will vary depending on the facts of the situation. Generally, reporting, sampling to characterize the nature and extent of the contamination, any emergency interim measures and a site hazard ranking, usually conducted by Ecology or under contract with the Department of Health to determine the relative priority for clean-up, are among the first steps to undertake. The owner will always want to go through this process with a qualified environmental consultant and with input and counsel from an environmental attorney. The next step is to develop a Clean-Up Action Plan or CAP. There are regulations in the Washington Administrative Code, or Federal Regulations where applicable, that set out the kind of analysis that must be undertaken to support a proposed clean-up action (namely that you are proposing an appropriate and adequate plan for the site that is protective of human health and the environment). The steps to get there typically include a RI/FS, Remedial Action and Feasibility Study. This analysis will lead to a selected method and timeline for any clean-up.
Generally Ecology or the EPA will need to approve the selected plan. The agencies’ level of involvement will depend upon the facts. In the case of a current spill emergency interim protective actions are likely required and such actions are allowed on a voluntary basis, but at the owner’s own risk that the agency will determine such actions were inadequate, or otherwise deficient, if the agency was not involved. Site clean-ups are often performed as a part of a planned site re-development. In that case, it is often the re-development plan and window of opportunity that will drive the selection of the clean-up plan and the timing of the clean-up. The State of Washington has a Voluntary Clean-up Program and much re-development/clean- up work is done as an interim action under the VCP or under an Agreed Order with Ecology, again depending upon the facts of the case and the developer’s needs.
Correct handling of hazardous substances and adequate protections to avoid releases of hazardous substances to the environment, for example, when undertaking demolition or major remodel projects of older buildings will go a long way to keep association’s out of trouble. Protection of the public storm and storm/sewer systems are a current priority of regulatory agencies as this relates to Clean Water Act requirements and protection of our waterways and aquatic life, an important recreational and economic asset in our state. Therefore, due consideration should be given to protecting the storm/sewer system from entry of contaminants, during construction projects and on a day to day operational basis if petroleum products, pesticides, metal particles or other such contaminates may slough off surrounding areas and be carried into these systems.
Any association or developer that has concerns about its handling of hazardous substances, contamination it has encountered, or concerns about potential impacts from neighboring properties should seek advice and counsel from an appropriate environmental consultant and/or attorney. There are many helpful websites and publications available through the EPA, State Department of Ecology, Department of Health, public utilities, and so forth, to gather additional knowledge and information on particular contaminants of concerns, for example, PCBs, petroleum products, lead and other heavy metals as a useful starting point.
References 1 or an “operator” usually a significant lease arrangement. 2 The EPA and/or local utilities and even local tribes may be involved in the process. 24
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