Tag: real estate environmental due diligence Phase I ESA

A Look Back at 2019 and Resolutions for 2020

Resolutions List

Happy New Year!  Here are my thoughts on the big stories of 2019, some highlights for C Bishop Law in 2019, and my resolutions for 2020.

  • PFAS – EPA and states are continuing to become more aware of PFAS chemicals. More states are starting to require testing for PFAS as part of an investigation, and many states have set very low limits for certain PFAS.   I see this trend continuing in 2020.
  • Agency staff lack of experience – As I mentioned in my blog about TCEQ going rogue, many agency staff are inexperienced and ask for additional information that is not legally or technically required.  I also, unfortunately, see this trend continuing in 2020.
  • Commercial real estate is hot – I am working on a lot of commercial real estate transactions. Buyer and sellers need to be aware of environmental impacts to avoid surprises by doing a Phase I Environmental Site assessment and possibly an environmental compliance audit.  Read my blog post for more information on this topic.

2019 Highlights for C Bishop Law PC

Resolutions for 2020 (in random order)

  • Reduce time on social media for non-work related topics.
  • Don’t multi-task. Every client deserves my undivided attention.
  • Keep pushing back on agency actions.
  • Continue to reduce clutter (in my house and at the office).
  • Enjoy life more (including devoting more time to my garden.  See my results for 2019 below).
Pepper Relish Ready to Can
2019 Pepper Relish
Canned pepper relish
Thirty half pints!

 

Wishing you a happy and prosperous 2020!

Cindy Bishop – cbishop@cbishoplaw.com

2019 Environmental Resolutions

Happy New Year!

What will be your company’s resolutions for 2019?

Here are some resolutions for 2019 that can help you avoid environmental surprises:

  • Resolve to commission a Phase I Environmental Site Assessment when buying or leasing real property – Yes, even for leases.  Yes, even for raw land.  For a few thousand dollars, you can get peace of mind and ensure that there are no hidden environmental surprises, such as indoor air issues from an old dry cleaner that got regulatory closure before indoor air was an issue.  In addition to supporting a defense if contamination is later discovered, it makes good business sense.  Also be aware of my Top 10 Due Diligence Mistakes.
  • Resolve to do more than a Phase I Environmental Site Assessment when buying a company –  Make sure the acquired company has the necessary environmental permits and that the company is in compliance with those permits.
  • Resolve to be aware of trending environmental issues – You don’t have to be an expert.  Just be aware of trending environmental issues, such as PFAS and greenhouse gas reporting.  Read only the headlines if you are busy and just want to know the lingo.  Then, ask your favorite environmental attorney for more information.
  • Resolve to use consultants for data gathering and interpretation and use lawyers for legal questions – Especially for the second resolution above, a consultant can gather data but should not make legal conclusions about whether a facility is in compliance or needs a permit.  That opinion should come from an environmental attorney.  Consultants and lawyers should work as a team.
  • Resolve to look at internal practices – Like stepping on the scale, it is hard to realize that your company should improve its practices.  But it is better to catch issues yourself than have a regulatory agency catch it in an inspection.  Take advantage of programs such as the Texas Audit Privilege Act or EPA’s e-disclosure program to self-disclose and correct problems with potential immunity.

Need assistance? Contact me at cbishop@cbishoplaw.com

Wishing you a prosperous New Year

Don’t Underestimate Environmental Due Diligence

I’ve been to a lot of “deal maker” networking events lately.  These are the ones with lenders, private equity folks, M&A attorneys and other people who help put deals together.  When I introduce myself, many are perplexed about why I am there.  “Do you do Phase I’s?” they ask.  “No.  I review Phase I’s to make sure they are done properly and resolve issues identified in those reports.”  I reply, adding “I also make sure the business has the proper environmental permits, authorizations and registrations and that they are in compliance with those requirements.”  Then, they get a look that says they didn’t consider those issues in their last deal.  Oops.

Environmental Due Diligence is so much more than doing a Phase I on real property.  I had a client come to me after he purchased a business.  TCEQ inspected the business not long after the deal closed and found that they were operating in excess of their permitted limits.  TCEQ shut down the business until they could get the proper registration.  Had the client reviewed the permit conditions before closing, he would have seen the noncompliance and could have made the seller remedy it.

Don’t underestimate the environmental requirements of a deal.  For example, do your deals involve food distribution businesses?  Keep in mind that commercial refrigeration units are regulated by the Clean Air Act.  In early 2016 Trader Joe’s agreed to pay EPA a $500,000 penalty for failing to inspect and repair leaks in its refrigeration units.

Environmental due diligence should be more than checking a box.  The consequences can be devastating.