Could Your Property Be Contaminated? And Do You Want to Know?

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

Avoiding Information Gathering About Your Property’s Potential Environmental Contamination May Not Do Your Business Any Favors

Do you own a piece of property that may be contaminated? We often hear clients say they do not want to know the answer to that question because they will be forced to do something about it. We disagree with that approach because you can’t make a good business decision about your property unless you have all the facts.

Here is an analogy to support our point. When you are not feeling well, you can choose whether to go to the doctor or not. If you really are sick, you often won’t get better until you get the right treatment. How many times have you heard someone say the hardest part of any illness is the diagnosis (i.e., not knowing the cause)?

Once you know what is ailing you, you can decide which course of treatment to pursue. The longer you wait, the less choices you may have and the greater the potential that you will need more treatment, rather than less.

We view potential environmental contamination in the same way. If you know the nature and extent of the problem, your business will be able to make better decisions. The business can decide how much or how little to do about the problem and whether to spend resources now or later to address it.

Addressing Exposure Pathways 

It is true the business might discover a problem that must be reported to a regulatory agency, which may require some actions in the short term. But in most jurisdictions, the business still has the ability to decide how much to do now versus later, as long as it addresses potential exposure pathways (e.g., mitigate harmful vapors intruding into a building that could make people sick or impact an unborn fetus). So now is the time to determine if your property is contaminated. If it is, the business can decide how best to deal with the problem. Once potential exposure pathways are addressed, the business can decide whether to wait and complete the cleanup when the property is redeveloped or take some action now to increase the value before a sale.

More Information, More Time to Act 

The sooner the business has the information, the more time it will have to make a sound business decision and to take steps to improve the situation, if desired. Business owners and executives may even sleep better at night because they no longer have to assume the worst.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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