Environmental law is one of the most rapidly changing areas of legal practice, according to a local attorney — and in Grand Rapids, there is no shortage of contaminated sites to manage.
Scott Hubbard, a Warner Norcross & Judd attorney practicing environmental law for almost three decades, focuses on the acquisition, management and financing of contaminated property, negotiation of environmental cleanups, compliance auditing and defense of agency enforcement proceedings.
“What I spend most of my time doing is to help people purchase, sell, lease and finance industrial and commercial properties, which sometimes have historical issues we need to address in terms of environmental impacts,” Hubbard said.
Some examples might include negotiating waste cleanup for former manufacturing sites to put them into current use — or to convert them into residential properties.
“There’s a whole set of laws that have sprung up around that,” he said. “In our state of Michigan cleanup law, it has two sets of standards: one for residential and one for nonresidential. The residential standards are the tightest, most restrictive, because they are residential. You’ve got every sensitive population: infants, the elderly, sick and so on.
“Within the commercial context, you’ve got people working an eight-hour workday, and they don’t live, eat and sleep in that place, so the (regulations) are a bit different.”
Hubbard said prior to the 1980s, environmental regulations of industrial byproduct disposal, wastewater discharge and chemical storage were much looser than they are today. Since “the law tends to follow the technology,” he said, there are specific regulations in place today to deal with each impact.
“Sometimes, there were waste materials like foundry slag or other types of waste that might be accumulated on a property. For example, you might have had underground storage tanks that didn’t have the rigorous standards of today to make sure they don’t leak. It’s not uncommon to go back into those properties and find there are leaks.
“There’s a role for the lawyer in guiding the process, guiding lenders, buyers and sellers through the process of what do we do with those properties and make them so they can be used again.”
He said his clients often buy large companies that own several manufacturing properties no longer in use, and it’s his job to facilitate the negotiation between buyer and seller about how environmental cleanup will be handled.
“There are specialty insurance products we can get to protect parties, and who’s going to pay for what and how that will work,” he said.
Hubbard said the environmental regulations vary depending on the former use of the property.
“A power plant might have a different set of issues than a steel mill or a paint shop,” he said.
Although he mainly specializes in application of state and federal clean water laws, he also counsels companies on air transportation of hazardous materials.
“Your air quality and water quality issues are primarily in play when an operation is going to continue,” he said. “The air regulation universe is all about what I want to put in the air. If I want to put something up through my smokestack, I will need to get a permit from the state. Whereas, if we’re talking about indoor air, it wouldn’t have those same regulations.
“The wastewater side works much the same way. The way that evolved is that, at one time, a lot of industrial companies would have their own permit to discharge wastewater they had treated to water treatment plants in the state. It’s really become almost a universal practice to send your wastewater, when you can, to a municipal sewage treatment plant. … From a regulatory perspective, it’s a lot more streamlined.”
Hubbard said most local companies are up to speed with following environmental laws and getting air and water permits for their industrial and commercial properties; it’s mostly a matter of transferring and renewing permits. Sometimes, companies let permits fall through the cracks. One client in the food industry failed to renew its state-issued permit for wastewater discharge after a management change.
“As part of that business, they generated wastewater, and their wastewater discharge was rinsing out a series of tanks they used to cook food. They had to rinse them out and clean them, and that rinse water — mixed with food and heavy-duty dish soap — was discharged to a low spot on the ground in a rural area,” he said.
“There was no sewage treatment plant nearby, so they couldn’t direct the wastewater there. There are ways you can do (the discharge of wastewater in rural areas) and legally should. … The fact the permit had lapsed was missed. But there they were engaging in this discharge, and there was no question they were in violation.
“We talked to them and discussed the notification requirements that might apply, the approach they would take to prevent this issue and ask for a permit, and this was what we helped them to do.”
Other wastewater matters Hubbard advises on include mobile home parks having seepage ponds where laundry water and sewage collects and has to be drained and transported, rural Laundromats discharging dirty water, power-washing, egg-washing, car washes and more.
He also is keeping an eye on the issue of invasive species in the Great Lakes. He said it is “urgent” because bighead, or Asian, carp — which do not have stomachs like other fish — gobble large numbers of prey daily to absorb their nutrients.
“People couldn’t come to an agreement on the need (for action),” he said. “I think it was fairly early on in the Obama administration, there was a push to say, ‘Hey, we need to do this, this is urgent, we’re going to wreck the Great Lakes fishery.’
“They wanted to separate the Mississippi water basin and the Great Lakes basin, which hasn’t happened because of Chicago shipping routes,” he said, noting Illinois special interest groups became an obstacle.
Meanwhile, on the environmental impact front, the Department of Environmental Quality is working to tighten the limits of certain kinds of substances in soil, groundwater and air. But it may take awhile, Hubbard said.
One of the newer trends he has seen is companies adopting a “zero-waste-to-landfill” policy as part of their sustainability objectives. He said he learned about the practice when he was serving as board chair for the West Michigan chapter of the Air & Waste Management Association.
Hubbard said the furniture manufacturer Haworth is one West Michigan company that has committed to a zero-landfill policy.
“They managed to do it all,” he said. “Nothing leaves their place of business.”