When negotiating a commercial lease for a retail store, environmental issues are typically not as high on the priority issues list as they would be if the property was industrial. However, the EPA’s waste generation rules apply to retail stores too.
In a typical retail lease, as in any lease, at a minimum it will include a broad requirement that the tenant must comply with all laws applicable to it and it will also often include a simple covenant to not violate environmental rules and regulations. It may not run on for a page or two but the point will be the same….tenants must comply with environmental regulations applicable to their operations at the leased premises.
The EPA’s rules and regulations with respect to hazardous waste generation are one example of rules drafted a long time ago with industry in mind now apply to retail stores. While it is easy to see how that could be true when talking about an automotive supply store with the typical products that would be sold in such a location, the reach is much broader.
Stores have to deal with slow moving merchandise that takes up valuable shelf space. Items that are obsolete or damaged or otherwise not salable need to be removed to make room for new merchandise. However, the disposal of some of these items can trigger the EPA’s regulations on hazardous waste generation. Think of batteries of all shapes and sizes, aerosol cans and nicotine patches and other medications (including some over the counter products), just to name a few. Many small retail tenants are probably not even aware that such rules and regulations apply to them, and therefore may be in breach of environmental covenants in their leases without knowing it.
The EPA has finally started to focus on the need to revamp the regulations for application to the retail sector and earlier in the fall issued its Strategy for Addressing the Retail Sector under the Resource Conservation & Recovery Act (RCRA) Regulatory Framework.
Landlords of commercial retail property should take care to ensure that their leases require tenants to comply with all environmental rules and regulations, and indemnify for violation. Retail tenants need to be aware that their operations, particularly when it comes to disposal of merchandise, can be subject to RCRA and similar laws on a state level.
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Showing posts with label Environmental Regulations. Show all posts
Showing posts with label Environmental Regulations. Show all posts
Before Renovating or Demolishing Your Building, Don't Forget To Investigate The Presence Of Asbestos
When you mention the word ‘asbestos’ many people think of the late night commercials run by law firms regarding mesothelioma. That dreaded disease is typically contracted by a person having breathed a significant amount of asbestos fibers or airborne asbestos dust. Washing a family members’ dirty clothes covered in such fibers or dust can also cause development of this rare form of cancer, lung cancer or other diseases.
Besides all the litigation, which has spawned many headlines over the years, a regulatory environment has developed to address the issue. Anyone who is thinking about construction, particularly renovation or demolition of a structure, whether a home or commercial building, needs to consider whether there is a need to address the abatement of asbestos or not. This is not just an issue for old buildings and homes, but also, to some degree, new construction, as roofing, ceiling tile and flooring may still contain asbestos, even today, depending on the country from which the material is sourced.
Of bigger concern are renovation and demolition projects where the presence of asbestos needs to be determined by the project commences. This is because of the likely potential that asbestos could be disturbed. In the course of demolishing or renovating a home or commercial building, it is wise to first determine whether any ACM are present, what type and how much. There are many competent environmental consultants in Ohio that are licensed to conduct a review and test for the presence of asbestos.
[Note: For the sake of space, I’m over-simplifying this, so to any environmental consultant reading this who is cringing about all the nuances I’m glossing over, please feel free to submit an article to me covering the issue in more detail.]
Two factors that can affect what property owners and their contractors must do are the amount of asbestos that is present and the type of asbestos, i.e., whether the ACM is friable or non-friable. When dry, ACM will be categorized as “friable” if it can be easily crumbled, pulverized or otherwise reduced to powder. If the material cannot, then it is considered “non-friable.” Non-friable ACM can be turned into friable under certain conditions such as removing it during demolition or renovation, or by fire. Non-friable ACM are also placed into two categories based upon how resistant the materials are to crumbled or pulverized.
Left undisturbed, asbestos-containing materials (ACM) are not a risk. However, anyone considering the renovation or demolition of a building should first hire an appropriately licensed asbestos contractor who can test for the presence of asbestos in the building, or portion of building, that is being demolished or renovated.
Depending on the type and category of ACM found, if any, and the amount of ACM present, the removal or encapsulation of ACM may be necessary.
Two Ohio agencies/departments are significantly involved in the regulation and oversight of this process: The Ohio Environmental Protection Agency and the Ohio Department of Health. Data regarding their respective roles in oversight, regulations and licensure and other useful information can be found on their web sites.
Environmental consultants are worth their weight in gold when addressing what to do and how prior to commencing and during construction or demolition. A good consultant can advise on an approach that minimizes the costs of abatement and help convince the appropriate regulators to permit it. Should the asbestos regulations be ignored and the state regulators get initiate an adversarial process, then retaining specialized environmental legal counsel will also become necessary. .
Property owners considering renovation or demolition would be wise to consult real estate counsel ahead of time. Most real estate attorneys have worked with environmental consultants and attorneys that are environmental law specialists and can advise on who to call and when.
Besides all the litigation, which has spawned many headlines over the years, a regulatory environment has developed to address the issue. Anyone who is thinking about construction, particularly renovation or demolition of a structure, whether a home or commercial building, needs to consider whether there is a need to address the abatement of asbestos or not. This is not just an issue for old buildings and homes, but also, to some degree, new construction, as roofing, ceiling tile and flooring may still contain asbestos, even today, depending on the country from which the material is sourced.
Of bigger concern are renovation and demolition projects where the presence of asbestos needs to be determined by the project commences. This is because of the likely potential that asbestos could be disturbed. In the course of demolishing or renovating a home or commercial building, it is wise to first determine whether any ACM are present, what type and how much. There are many competent environmental consultants in Ohio that are licensed to conduct a review and test for the presence of asbestos.
[Note: For the sake of space, I’m over-simplifying this, so to any environmental consultant reading this who is cringing about all the nuances I’m glossing over, please feel free to submit an article to me covering the issue in more detail.]
Two factors that can affect what property owners and their contractors must do are the amount of asbestos that is present and the type of asbestos, i.e., whether the ACM is friable or non-friable. When dry, ACM will be categorized as “friable” if it can be easily crumbled, pulverized or otherwise reduced to powder. If the material cannot, then it is considered “non-friable.” Non-friable ACM can be turned into friable under certain conditions such as removing it during demolition or renovation, or by fire. Non-friable ACM are also placed into two categories based upon how resistant the materials are to crumbled or pulverized.
Left undisturbed, asbestos-containing materials (ACM) are not a risk. However, anyone considering the renovation or demolition of a building should first hire an appropriately licensed asbestos contractor who can test for the presence of asbestos in the building, or portion of building, that is being demolished or renovated.
Depending on the type and category of ACM found, if any, and the amount of ACM present, the removal or encapsulation of ACM may be necessary.
Two Ohio agencies/departments are significantly involved in the regulation and oversight of this process: The Ohio Environmental Protection Agency and the Ohio Department of Health. Data regarding their respective roles in oversight, regulations and licensure and other useful information can be found on their web sites.
Environmental consultants are worth their weight in gold when addressing what to do and how prior to commencing and during construction or demolition. A good consultant can advise on an approach that minimizes the costs of abatement and help convince the appropriate regulators to permit it. Should the asbestos regulations be ignored and the state regulators get initiate an adversarial process, then retaining specialized environmental legal counsel will also become necessary. .
Property owners considering renovation or demolition would be wise to consult real estate counsel ahead of time. Most real estate attorneys have worked with environmental consultants and attorneys that are environmental law specialists and can advise on who to call and when.
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