Properties Where Environmental Assessments Have Not Been Completed
Over the past few years, it has become standard practice for those involved in land transfers to perform an environmental assessment of the property before sale. Buying or developing land, particularly in former or current industrial-use areas, can pose problems if all parties involved do not know whether the property has been affected by its former use. Past disposal practices did not take into account what we now know are the problems posed by hazardous substances. It pays to follow the general rule “buyer beware.”
The first step in performing an assessment is usually hiring an environmental consulting firm with the expertise to conduct an environmental assessment of the property. While the MPCA does not recommend specific consulting firms, the agency does have lists of environmental consultants who can be hired to assess property. The agency’s Voluntary Investigation and Cleanup (VIC) Program also has a series of fact sheets which outline the features of a good environmental assessment. These can be accessed on the web page at www.pca.state.mn.us/cleanup/vic.html . If the business performing the assessment wants legal assurances that the property poses no or limited liability, the business can sign up for the VIC Programs. The staff will oversee the environmental investigation and cleanup, if needed, and work to provide the necessary assurances. Voluntary parties pay the cost of MPCA review, oversight and preparation of assurances of the assessment.
If petroleum chemicals are the contaminants most likely to be found on site, the MPCA Petroleum Brownfields Program can assist with review and oversight and provide closure letters. If agricultural chemicals are involved, the Minnesota Department of Agriculture provides similar review and oversight services.
The environmental assessment involves seeking existing information about the property, its past uses, and its enforcement or permitting history, if any. It also includes an inspection of the site, noting areas where further testing is needed.
The environmental investigation involves actual testing of soil, ground water, surface water, tank contents or other possible contamination areas. The results of the testing may indicate the need for another round of testing or may be sufficient to make a determination about whether the site is contaminated and, if so, where and with what substances at what levels. If the assessment indicates site contamination, the business and/or consultant performing the assessment has the duty to notify the MPCA (through the Minnesota Duty officer), no matter whether the land transfer takes place or not. The land owner may also have the responsibility of filing an affidavit with the county where the property is located prior to a transfer of ownership. However, the business discovering environmental problems is not necessarily the party who is required to perform further work to clean up the site.
CREDITS: This is an excerpt from A Guide to Starting a Business in Minnesota, provided by the Minnesota Department of Employment and Economic Development, Small Business Assistance Office, Twenty-eighth Edition, January 2010, written by Charles A. Schaffer, Madeline Harris, and Mark Simmer. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.