Jan 2nd, 2024

How to Know If Your Property Is on The Government’s Radar For Possible Enforcement And How To Respond

One of the most common ways we meet our clients is after they receive unexpected and ...

January 3, 2024

One of the most common ways we meet our clients is after they receive unexpected and unwelcome mail from a government agency.  In the Water Board world, that would be a letter sent under authority of Water Code section 13304 or 13267, demanding information or action to investigate potential conditions at a property.  For DTSC, the Department of Toxic Substances Control, that would be a notice of an “Imminent and Substantial Endangement” under Health and Safety Code section 25358.3, with similar demands.

This situation can be unsettling, but understanding the process and taking the right steps is essential to protect your interests.

Understanding the Context

If you've received such a notice, it's likely because you, your parents, or your grandparents were associated with a business that handled hazardous materials. These materials could range from oils, solvents, chemicals, to metal solutions or other similar items. Typical businesses falling under this category include manufacturing, dry cleaning, auto repair, transportation, or any entity that used or stored such materials on their premises. The very fact that these materials were on a property is a red flag to the government that they might have been spilled and might have contaminated the ground.

This doesn’t mean that the government will investigate every property or business.  There are occasions where agencies will cast a wide net and order a wide range of businesses and properties to investigate their conditions due to public health or regional concerns.  Usually, however, there’s a triggering event that calls attention to a specific property.  For instance, a property might come under scrutiny if a neighboring property owner discovers contamination affecting their property and suspect that it was caused from an off-site source.  Or, you might be in the midst of a sale and an environmnental assessment reveals a previously unknown problem.  It could also be that a government agency is monitoring a known contamination source nearby, and their research points to your business as a potential contributor.  While it may turn out to be nothing, the government has the right to act on these types of reasonable suspicions.

The Initial Steps

So, what should you do if you receive a letter from a government agency like a water board or DTSC, stating that your property is associated with suspected contamination?  First and foremost, do not ignore it.  We’ve seen numerous situations where the recipient assumed this was an informal notice and not a formal demand.  Don’t make that mistake.  This type of letter demands immediate attention and swift action. While our list is not comprehensive, here's our tips for the best ways to respond:

Review the Allegations: Carefully read through the letter and understand what the government agency is alleging. It will outline the basis for the agency's suspicions and what it expects you to do.

Determine Your Deadlines. It’s unfair, but government agencies will usually set a very fast deadline for you to take action.  Letting that deadline slip may mean that you lose a legal right to challenge their demands, it can subject you to penalties, and it may allow the government to later seek harsher penalties by painting you as a bad actor.  Empower yourself by taking action as soon as possible.

Ask Questions.  Often, these government demands will list a contact person.  Don’t be afraid to reach out to them to find out why you’ve received the letter.  But be careful to receive information, and avoid providing information that can be used against you. And it may be best to wait until you follow our next step.

Get Some Help.  Find someone you trust who’s familiar with these situations.  Even if you don’t hire a consultant or an environmental attorney to handle everything, it’s still worth obtaining some initial advice to ensure that you fully understand the situation and your options.  We’ve had clients retain us just to confirm that they weren’t being scammed or to find out the potential consequences of the government’s demands.  We've had clients handle negotiations for themselves, but use us as a "gut check" to make sure the response was appropriate. Again, having this information allows you to choose your path forward.  And getting this advice from someone familiar with these situations is critical because environmental regulations can be complex, and missteps can lead to significant consequences.

The Result

Not every business or property owner will end up on the wrong end of a government agency’s attention.  But if you do receive a letter from a government agency regarding property contamination, it's crucial not to ignore it. Swift action, careful assessment of the allegations, and seeking professional guidance are your best courses of action. A prompt response can make all the difference in resolving this matter effectively and protecting your interests.  Don’t assume the situation will go away, and on the other extreme, don’t assume it’s so terrible that all hope is lost.  Until you take time to assess the situation, it’s too soon to tell what the government’s action means.  Arm yourself with the best information possible and work with professionals to determine your best options.

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