When acquiring a site for development, a potentially costly risk is having to clean up hazardous waste and/or remediate environmental dangers within the site’s boundaries. That is why you must have a professional environmental services company perform an environmental site assessment (ESA) prior to acquiring the site in question to minimize your risk.
I recently had the opportunity to attend the annual meeting of the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”). ASTSWMO, to those unfamiliar with the organization, was established in 1974 to enhance and promote effective state and territorial environmental programs. The annual meeting afforded me a great opportunity to hear and see the perspectives from regulators and industry experts on current issues affecting the use and operation of underground storage tanks (“USTs”). While these issues are not necessarily new, hearing about firsthand experiences truly helps to put things into perspective. Two sessions in particular did just that for me.
What is a Storage Tank Compliance Program?
Companies that utilize underground storage tanks (USTs) are subject to regulations by local, state, and especially federal regulations and controls. Requirements for prevention and detection of leakage from such containment tanks are intended to prevent ground and water contamination by hazardous chemicals and petroleum-based products.
The Toxic Substances Control Act (TSCA) has long been the primary law that specifies how industry must manage chemicals and other toxic substances. President Obama has now signed into law revisions that form the first comprehensive changes to TSCA in 40 years. Now that the changes are law, it becomes the responsibility of industries to understand and comply with the new legislation.
Before leasing commercial or industrial property for a new business operation, prospective lessees should consider environmental due diligence to be just as important as if they were buying the real estate concerned. One of the most prudent measures that a potential lessee can take is to have a Phase I Environmental Site Assessment (ESA)performed to identify any actual or potential environmental contamination.
As of April 11, 2016, new or replacement underground storage tanks (USTs) must have secondary containment in order to be compliant with U.S. Environmental Protection Agency (EPA) regulations. If UST operators who have had new tanks and pipes installed in the last few years have followed best practices, their installations probably meet with the EPA’s new standards of UST environmental compliance. It is important to be aware, however, that simply having secondary containment is hardly an assurance that releases or leaks will be contained.
Operators of industrial facilities must prepare and manage stormwater plans to comply with the conditions for holding a National Pollutant Discharge Elimination System (NPDES) stormwater permit.
Environmental Site Assessments (ESAs) help to safeguard commercial/industrial real estate buyers against liability for cleaning up hazardous environmental contaminants. While these assessments, such as the Phase I ESA, tend to focus on the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property, buyers should be aware of the risks of future vapor encroachment from nearby properties.
In Massachusetts, there are now just two agencies that oversee issues related to the operation, maintenance and use of underground storage tanks (USTs). While this is presumably more beneficial to the days when there were three, navigating through the two regulatory schemes can still be a challenge even for those that self-proclaim expert status.
“Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks”
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