Many small and mid-size New Hampshire business owners are often surprised to learn that state and federal environmental laws may apply to their operations. Even minor deviations from these requirements could result in penalties. Therefore, such businesses should develop plans for achieving and maintaining compliance with all applicable environmental requirements.
Environmental regulations may affect businesses in numerous ways. Air emissions from many activities including, for example, spray booths, dipping tanks, emergency generators, and boilers may require permits. Storing or using certain chemicals may require annual reporting. Any discharges of process wastewater either into the sewer or into surface water should be evaluated in light of these regulations. Certain facilities are also subject to federal "stormwater" regulations which require them to assess whether precipitation running across the property picks up any pollutants that need to be controlled. Proper waste disposal is essential. Facilities must ensure that if they generate "hazardous" waste, it is managed on-site and disposed of in accordance with stringent regulations. Even if waste materials are not hazardous, they may generate compliance obligations (for example, fluorescent light bulbs and certain batteries).
Business owners must also consider the environmental implications of modifying or expanding their operations. Modifications to existing facilities or process lines may drastically alter a company’s environmental obligations. For example, increases in certain air emissions or the generation of new or additional wastes must be carefully assessed.
Business people expanding their facility’s footprint, or acquiring additional land and buildings, should keep environmental issues in the forefront of their planning. The site should be assessed carefully to determine if any existing contamination is present. One common example involves petroleum products leaking from old underground storage tanks. In certain circumstances, most notably with petroleum contamination, State funds may be available to offset clean-up costs. Other common examples include asbestos in older buildings and waste-containing drums left on-site. The parties to the transaction should carefully consider how remediation obligations and potential third-party liability for migrating contamination will be allocated.
In recent years there has been an increased focus on environmental enforcement, both at the federal and state level. It, therefore, behooves businesses to assess their current compliance status. The best way to perform this assessment is to have someone familiar with the myriad of regulations examine your operations and waste disposal practices to ensure they comply with current law. Such assessments may uncover minor issues (e.g. failure to label and store hazardous waste correctly, deficient record keeping) or major issues (e.g. the need to obtain air permits for certain devices, improper disposal of hazardous waste, failure to file annual chemical usage reports, or not preparing a stormwater pollution prevention plan).
If problems are discovered, the proper steps need to taken to remedy them as soon as possible. Choices will then need to be made as to whether there is an obligation to report non-compliance and, if so, how to best manage that situation. One issue is clear: it is always better to identify and address environmental problems on your own rather than have regulators discover the issues first.
Barry Needleman is a partner in the Concord, New Hampshire office of McLane, Graf, Raulerson & Middleton, Professional Association, P.A. He concentrates his practice on environmental and insurance coverage matters. He can be reached at (603) 226-0400 or by e-mail at [email protected].