September 8, 2010

We received the following question from a Minnesota business owner who had questions about dealing with contamination that was recently discovered on property. While we cannot provide anyone with legal advice (please see the disclaimer on this website), we can to respond to this question in a general manner. Please contact the environmental attorneys at Hessian & McKasy’s Environmental Law Attorney Practice Group directly about your specific case.

Question: “Several years ago we purchased property where we operate our business.  When we purchased the property, the seller gave us an environmental report and told us the land was “clean” and free and clear of contamination. Now it looks like that is not the case. We recently were involved in the refinancing of our property. The bank hired a consultant to complete a Phase I environmental study of the property. The bank asked us for permission to conduct soil and water tests. They apparently found pollution and now are telling us there is contamination that needs to be addressed. We are concerned that we will be incurring significant expenses. How should we handle this situation? Do we have a right to seek recovery from the seller or others? How do we pursue any claims we may have?”

Answer:  Thanks for your question and inquiry. We are pleased to respond to the extent we are able to do so. Without getting more background information and first checking to make sure we do not have a conflict, we cannot provide you with a specific, definitive answer or legal advice. Nonetheless, we can make some general observations about your situation.

Based on the description you have provided, you may have a claim for damages. However, before reaching that conclusion more investigation of the specific circumstances prior to your purchase and in the intervening years needs to be completed. In addition, we would need to review the terms of the agreement between you and the seller. Typically, liabilities, including environmental liability, will be addressed and allocated before the sale of property or a business is completed. The agreement may contain terms that determine which party is responsible for the identified concerns.

If we determine we do not have a conflict, that we can represent you and have entered into a retainer agreement with you engaging our Firm on your behalf, we can provide you with legal representation. Once you have retained our firm and we have had a chance to review your case and all relevant background information, we will be in a position to assess whether you may have a claim against the seller or another third party. By the way, we are available for consultations as to these types of matters. In a consultation, which may last an hour or more, we can review your options.

With environmental matters, there are always questions as the source of the contamination. It is possible that the impacts to soil or groundwater may have come from an on-site source (a tank, past use of chemicals or drum storage). The pollution may originate off-site on a neighboring piece of property. If the source of the contamination is an underground storage tank that contained petroleum, you may be able to take advantage of the Minnesota Petrofund which provides reimbursement for investigations and cleanups of petroleum leak sites.

Of course, the circumstances of each case vary. Our environmental attorneys are skilled in analyzing contamination claims such as these. We will evaluate all options available to you including negotiation or alternative dispute resolution, such as mediation, to see if the dispute can be resolved before resorting to litigation. If the matter cannot be satisfactorily resolved, we may need to evaluate next steps, including litigation.

Our environmental attorneys have experience in federal and state courts. In cases involving the cleanup of contaminated property, parties may have a claim under environmental laws for recovery of the costs of investigation, cleanup costs and, in some instances, attorneys fees. We draft complaints and other legal documents to represent our clients’ interests. In certain cases, clients may be able to pursue recovery through an insurance policies that may provide coverage. Policy terms need to be carefully evaluated. We have experience handling insurance coverage cases.

The environmental attorneys in the Hessian & McKasy Environmental Law Attorney Practice Group are strong and effective advocates for our clients. We assemble a team of professionals – lawyers, paralegals and legal assistants – to assist our clients. If experts are needed to address environmental concerns, we can recommend environmental consultants to assist on discrete tasks. When appropriate, we call upon our colleagues in our Real Estate, Business or Litigation Departments who may be able to provide assistance in their areas of expertise. As your counsel our goal is to address your legal needs, advise you of all available options, develop an effective legal strategy and diligently pursue the matter on your behalf.

We offer innovative legal service packages to our clients, including a package for litigation Claims Assessment. To learn more about these offerings, please see:http://www.enviroattorney.net/sample-price-list.php. For information about the environmental lawyers in Hessian & McKasy’s Environmental Law Attorney Practice Group, please visit:http://www.enviroattorney.net/attorneys/josheph_g_maternowski.php.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, P.A.

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