Environmental Legal Questions

It is not legally required that an employer have a tape to fire an employee for stealing.  Claiming that it has a tape of you stealing when it does not actually have such a tape might create an inference that the reason stated for your termination was pretextual.  That may be helpful if you think you might have a case for wrongful employment discrimination based on your race, color, ethnicity, national origin, disability, religion, age, or pregnancy.... Read More

Mold in residential and commercial buildings is a real problem, especially for those people with sensitive or compromised immune systems.  Indoor mold growth is typically caused by water intrusion, interior leaks or high interior humidity levels.  The problem cannot be solved until the underlying source of excess moisture is identified and eliminated. So, my first question is whether you have identified the source of the mold and taken steps to eliminate it?  If not, that needs to be accomplished ASAP. With regard to your legal rights, to prevail in a mold exposure case, you must prove that: i) someone owes you a duty to protect you from mold exposure; ii) that party breached the duty to protect; and iii) such breach caused you to be damaged or injured. In your situation, the duty owed to you by a realtor and/or a bank owner/seller is probably limited to their "actual knowledge" of the property's condition.  In most cases of bank owned property, there is very little "actual knowledge" about the property because the people who lived/worked in the building are not involved in the transaction.  So, the realtor/bank has a limited duty not to conceal or misrepresent information in their possession about the property.  Do you have evidence that the realtor/bank fraudulently concealed or misrepresented the condition of the property prior to your purchase? Also, did you have an inspection of the property performed before closing on the purchase? Even if you are able to prove that the realtor/bank breached its duty to disclose information about the mold, you will still need to prove that the mold exposure "caused" the negative health effects that you and your grandchildren are experiencing.  Courts will require you to produce a medical doctor's opinion on the causal relationship between the level of exposure to mold spores and the actual sickness complained about.  That can be difficult to obtain because many of the symptoms of mold exposure are similar to other unrelated illnesses. So, in summary, in order to prevail in a mold exposure lawsuit, you will need present evidence of: i) a responsible party who knew about the problem and failed to disclose it to you; ii) the exposure caused you financial losses; and/or iii) the exposure caused your personal injury that must be corroborated by an independent medical professional. ... Read More

Do you think that there is a leak on your side of the meter?  There is an easy check.  Turn off all of the water inside and outside of the house.  If the meter spins, then water is running past the meter and you have a leak. If it's not due to a leak and you think that this is a billing issue, then call the water company.  Ask them to calibrate the meter.  Ask them to review your bill.  Ask them to explain the bill to you.  Be persistent.  They are going to stonewall you along the way.  Be nice, but firm.  If that doesn't work, then write a demand letter.  If they don't respond, then sue in small claims court for the overcharges.  You can sue in small claims court for up to $10,000.... Read More

I am only licensed to practice law in the state of Ohio so my response is qualified by that limitation.  However, I have experience with a very similar circumstance in Ohio that might be helpful. You may have 3 separate causes of action regarding this matter: i) nuisance; ii) negligence; and/or iii) trespass. Nuisance requires a showing that the defendant's conduct created a non-trespassory interference with an individual plaintiff’s use or enjoyment of his property.  To prove nuisance, you will need to show that the additional volume and erosive effect of storm water created by the newly developed subdivision unreasonably interferes with the enjoyment of your property. Negligence requires a showing that: i) defendant owed a duty to plaintiff; ii) defendant breached that duty; and iii) defendant's breach caused plaintiff to incur damages.  In cases involving the destructive effects of storm water, it is important to determine whether the local government with appropriate jurisdiction has any storm water detention standards for new development.  In Ohio, the general engineering standard is that the pre-construction and post-construction storm water flow should be similar.  If the developer failed to follow the adopted storm water design requirements, that can constitute a breach of duty supporting damages. Trespass requires a showing that defendant unlawfully and intentionally entered onto another's land.  Trespass does not require the person to physically enter onto another person's land but instead simply requires that the person cause a destructive force to enter onto another's land.   In your circumstance, the increased volume and erosive effect of storm water created by the new development may be considered a trespass. The other issue you need to consider is the applicable statute of limitation.  In Ohio, the statute of limitations is 4 years for each of the above listed potential causes of action.  However, the 4 year statute of limitations may be tolled (extended") when the action causing the damage is "continuing" as opposed to "a one time event."  In your case, the 4 year statute of limitation should not be a problem, unless the entire subdivision was completed more than 4 years ago. If the City continues to threaten you with legal action based on your refusal to remove the culvert, you might consider filing an declaratory judgment action or an action seeking injunctive relief against the City. In any event, you will need to contact an attorney licensed to practice law in Wisconsin to represent you in any of those actions.  Good luck.... Read More

Generally speaking, a state may adopt environmental regulations that are more stringent than corresponding federal regulations on the same issue.  The exception to this general rule comes into play when the federal law is clearly intended to provide for a uniform system of regulations throughout all the states.  In such a case, the more stringent state regulations are considered to be "preempted" by the federal regulations. This is a question of law that an attorney in your state should be consulted to consider. I hope this answer helps you.  Good luck.  ... Read More

I am only licensed to practice law in Ohio so my response is conditioned on that limitation. I understand the health and financial difficulty you are facing.  Unfortunately, when a state and/or local health agency does not have regulatory requirements related to mold, a tenant is left to his/her common law causes of action, which include negligence and nuisance.    The problem with common law causes of action is that each litigant is expected to pay for its own legal counsel.  Consequently, you would need to find an attorney licensed to practice law in West Virginia who is willing to take your case, and a medical professional willing to testify that your medical issues are “caused by” an exposure to mold.  Proving the causation issue can be difficult.   When funds for hiring an attorney are not available, you could consider contacting your local legal aid society, but they may not have the expertise to handle such a case.      So, on balance, your best option may be to immediately seek alternative housing to remove yourself from the contamination.  Many people get better pretty quickly after terminating their exposure to the mold spores.  I hope this helps.  ... Read More

I am only licensed to practice law in Ohio so my suggestions below are general only. You should consult with an attorney licensed in Arkansas to obtain official legal advice on this matter.  That being said, please consider the following. Ohio has a general nuisance statute at Ohio Revised Code Chapter 3767.  First, it defines what a nuisance is (3767.01), prohibits persons from causing a nuisance (3767.02), then allows for government officials or the persons affected by nuisances to file a lawsuit seeking a Court injunction against the nuisance (3767.03).  However, the person who files such a lawsuit must post a bond to cover the defendant's damages in case the Court decides in favor of the defendant.  You should find out whether Arkansas has a similar nuisance abatement statute. Nuisances can be based on excessive odors or noise, but such cases are difficult to win.  Plaintiff has the burden of proving that defendant's use of his/her property is an unreasonable infringement on the neighbor's use of his/her property.  It is a balancing act for the Court.  The best way to prove such an infringement is for the plaintiff to show actual health effects or a diminution in property value. The negative health effects of excessive noise are not universally accepted at this point in time.  However, in the course of permitting wind turbine projects across the country, evidence of negative health effects related to high and low frequency noise is being developed.  You might be able use that same evidence to support your case. To prevail on a claim for damages based on diminution in property value, you will need to show that the offensive noise is the sole or substantial cause of the diminution.  That will require a professional appraisal that considers and discounts other potential causes. The best way to limit your legal costs in bringing such an action is to convince a governmental entity to file the injunction action.  If that cannot be accomplished, consider organizing a group of similarly situated property owners to share those costs.   Good luck.... Read More

I am only licensed to practice law in Ohio so my response is limited by that restriction. However, because your issue is controlled by federal law, you may find the following information helpful. Your situation is controlled by USEPA’s 2008 Lead-Based Paint Renovation, Repair and Painting (RRP) rule (as amended in 2010 and 2011).  The RRP rule aims to protect the public from lead-based paint hazards associated with renovation, repair and painting activities. These activities can create hazardous lead dust when surfaces with lead paint, even from many decades ago, are disturbed. The rule requires workers to be certified and trained in the use of lead-safe work practices, and requires renovation, repair, and painting firms to be EPA-certified. These requirements became fully effective April 22, 2010. Under the rule, beginning April 22, 2010, firms performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and kindergartens built before 1978 must be USEPA or state certified and must use certified renovators who follow specific work practices to prevent lead contamination. This includes in-house maintenance staff and many types of outside contractors.   In order to become certified renovators, individuals must take training from a USEPA accredited training provider. If your house was built prior to 1978, your contractor violated the RRP rule while performing the window replacement work at your home without satisfying the lead based paint testing requirements of the RRP.  Such violation is evidence of the company’s negligence in performing the work, which provides you with a clear cause of action to recover their damages incurred as a result of that negligence.  It also provides you with solid grounds to file a complaint with USEPA and/or the appropriate regulatory agency in Michigan with jurisdiction over this issue. With all of the above information in mind, I suggest that you contact an experienced environmental attorney licensed to practice in Michigan to represent you in this matter.  Good luck.... Read More

I am only licensed to practice law in Ohio so my response is limited by that restriction.  Notwithstanding, I have found that the best way for a private property residential tenant to get the attention of the landlord is to contact the local health department about the mold contamination. With regard to the landlord's representatives entering your apartment without notice, I suggest that you read your lease closely.  There should be a paragraph in the lease that clearly provides the landlord with the right to enter the apartment to perform inspections and to undertake necessary repairs....after some kind of reasonable notice.   I suggest that you make it clear to landlord in writing that you expect him/her to provide you with the required notice prior to any future attempt to enter your apartment. Good luck.  ... Read More

I am only licensed to practice in Ohio so my response is limited by that restriction.  However, if one of my clients was faced with your situation in Ohio, I would have the following advice. Your first line of defense should be to contact OSHA with a request for them to conduct an inspection of your work environment.  OSHA's role is to protect workers in the workplace.  Your potential exposure to the chemical smell and/or natural gas is clearly within OSHA's jurisdiction. If you are unable to convince OSHA to take action, you might also try calling the local city, county or state health department.  Health departments have jurisdiction over health issues affecting the general public. You also have the option of engaging an attorney to sue your employers for an unsafe work environment.  You will need counsel licensed in your state to pursue that option. Good luck.... Read More

I am only licensed to practice law in Ohio so the following advice is limited by that restriction.  Municipalities have broad "police powers" to protect the health and safety of its residents.  Septic systems are known to be a cause of contamination to ground water.  Consequently, a reasonable requirement to periodically pump out septic systems will most likely be upheld by a court. You should seek the counsel of a qualified environmental lawyer in New Jersey to provide you with a more complete answer.  Good luck.... Read More

I am only licensed to practice law in Ohio so my answer is qualified by that limitation. In Ohio, underground storage tank systems ("USTs") are regulated by the Bureau of Underground Storage Tank Regulations ("BUSTR").   BUSTR is part of the Department of Commerce, Division of State Fire Marshal.  The BUSTR regulations are compatible with federal laws and regulations (40 CFR Part 280) that became effective on November 8, 1984 and are implemented by the various states.  The regulations define who is a "responsible party" for an UST system based on when it was taken out of service.  With regard to that determination, the following important dates must be considered. Before January 1, 1974: If an UST was last used before January 1, 1974, then BUSTR registration is not required.  However, any UST that has been out of service for more than one year must be removed from the ground or otherwise permanently closed in accordance with the Ohio Fire Code. Before November 8, 1984 but after January 1, 1974: If an UST was last used during this time period, the “owner” is the person who owned the UST system, or the property on which it was/is located, immediately before the discontinuation of its use. On or after November 8, 1984: If an UST was last used during this time period, the “owner” is the person who owns the UST system, or the property on which it is located.  If the UST was used by anyone on or after November 8, 1984 and a release has not been reported, then the property owner may be the “owner” or “operator” and subsequently liable should a release be reported after their purchase. On or before December 22, 1988: If an UST system was permanently closed prior to this date, the “owner” is not required to perform a closure assessment, unless directed to do so by the State Fire Marshal.  “Permanent closure” is generally understood to include UST removal or the removal of all liquids and accumulated sludge and filling the UST with an inert solid material (such as concrete). Based on the situation you describe in your question, your action to drill the well, which punctured the UST and caused a release, will most likely make you the “responsible party” for release reporting and any remedial action requirements imposed by the State of Illinois.  If you determine that the UST was last in service prior to November 8, 1984, you may have a private cause of action against the owner of the property or the system at the time the UST use was discontinued.  However, that will most likely not affect the State of Illinois’ right to hold you responsible. You should contact a qualified environmental attorney in the State of Illinois to provide you with guidance and potential representation is this matter.    Good luck.... Read More

I am only licensed to practice in Ohio, so my comments are limited by that restriction. In Ohio, local governments that operate public water systems ("PWS") must meet certain operating requirements enforced by Ohio EPA.  Those requirements include providing drinking water with levels of contaminants that are lower than the maximum contaminant levels ("MCLs") set by USEPA.  Currently, about 95% of PWS in Ohio are in full compliance with their permits. When the local governmental entity fails to meet the MCLs, it is required to provide the public it serves with written notice of such failure.  "Public notification is required to include a clear and understandable explanation of the nature of the violation, its potential adverse health effects, steps that the public water system is taking to correct the violation and the possibility for the need to obtain alternative water supplies during the violation." If Florida operates a similar program, I suggest that you first contact the Florida Department of Environmental Protection ("Florida DEP") to learn more about your city's contingency plans for achieving compliance with its permit, and the Florida DEP's plans for bringing an enforcement action based on those permit violations. If Florida DEP does not provide you with satisfaction, you and other similarly situated city residents may need to bring a private legal action directly against your city.  In Ohio, a citizen's right to bring a legal action against a governmental entity for damages is significantly limited by the doctrine of sovereign immunity.  In addition, a citizen is limited to bringing a "mandamus action" to force a governmental entity to undertake any particular action, even one that the law requires. That is why you need to consult a Florida attorney to determine the necessary process for bringing a legal action against your city.  I hope this helps.  Good luck.... Read More

I am only licensed to practice in Ohio so my comments are subject to that limitation. Your question raises several other questions that need to be answered before a complete analysis can be provided.  First, when you say the lot"was cited" do you really mean that the lot was "suspected of being used" as a dumping ground for railroad ties about 20 years ago?  How long has your church owned the lot?  Did the individuals mentioned actually participate in the waste burial or simply know about it?  Railroad ties would be considered solid waste unless they were treated with chemical preservatives to a level that qualifies them as a hazardous waste.  Do you know anything about the condition of the buried railroad ties?  Your obligation to disclose your knowledge will depend on the answers to those questions. So, I recommend that you engage a qualified environmental attorney licensed to practice law in Illinois to advise you on your affirmative reporting obligations, if any.  Such an attorney would have the capability of engaging an environmental consultant to perform some site investigation and/or sampling to confirm your suspicions, and at the same time preserve your ability using the attorney client privilege to keep the consulting firm's findings confidential....if possible. I hope this response is helpful.  Good luck.... Read More

I am only licensed to practice law in Ohio so my comments below should not be considered legal advice on your New York issue.  However, my thoughts are as follows. There appears to be 3 possible causes of your issue.  1) test results may be flawed; 2) abrasive cleaners used contain radionuclides; or 3) structure cleaned was contaminated by radionuclides; It seems like you already confirmed that the test results are accurate. That leaves 2 potential causes. To eliminate cause #2, consider having the abrasive cleaner manufacturer or distributor provide your company with more written information to back up their Safety Data Sheet (formerly known as Material Safety Data Sheet) for the product.  The manufacturer or distributor should be able to prove the lack of radionuclides in their product. That leaves cause #3.  My limited research shows that Department of Energy ("DOE") facilities have historically generated waste containing radionuclides when paint is stripped from buildings that we already contaminated by radionuclides prior to being painted.  That could be your cause here. So, the pertinent questions might be: i) what is the history of the facility you removed paint from?; ii) what knowledge did the owner have about that history?; and iii) what does your contract say about the responsibility for waste characterization and disposal? If your contract is not specific about which party is the "generator" of the waste created by the removal work, you may have a dispute with the property owner about which party has the responsiblity for waste characterization and disposal.  Typically, that responsibility rests with the property owner.  Even with an ambiguous contract, you probably have a pretty good argument it only covers the disposal of normal solid waste, not hazardous waste. With those thoughts as a baseline, I strongly suggest that you seek the advice of a New York environmental lawyer to make decisions on how to proceed.  Good luck. ... Read More

Permitting of oil & gas exploration projects is typically done at the state level for state owned and privately owned property.  The Bureau of Land Management (BLM) handles most oil & gas exploration permitting on federal lands. In my home state of Ohio, the Ohio Department of Natural Resources (ODNR) Division of Oil & Gas has that responsibility. My advice is to check with the Department of Natural Resources or the Department of Mining (if one exists) to find out which agency handles such matters in the state of Washington.... Read More

I am only licensed to practice law in the state of Ohio but have experience representing landlords and tenants regarding mold issues.  Based on that perspective and the facts as you explain them, I don't think that running a dehumidifier will solve your mold problem.  For significant mold growth to occur, there must be a source of water (which could be invisible humidity), a source of food, and a substrate capable of sustaining growth. Common building materials, such as plywood, drywall, furring strips, carpets, and carpet padding are food for molds.  See http://en.wikipedia.org/wiki/Mold_growth,_assessment,_and_remediation With that in mind, I suggest that you make a written demand on your landlord to undertake an appropriate investigation and corrective action.  If he/she expresses reluctance based on cost, you may want to encourage the landlord to tender the matter to his/her insurance company.  Tenant claims based on mold should be covered by the landlord's insurance policy.  If the landlord still refuses to take any action, you may have to engage an attorney licensed in the state of Washington to file a legal action against the landlord. At the very least, the source of water intrusion must be repaired first.  After that is completed, replacement of the damaged wall, flooring and carpet should be completed. In addition, the local health department's suggestion for having air samples taken is a good one.  You should also consider testing the mold directly to determine which type of molds you are dealing with.  Some are more harmful to human health than others.  The cost for such testing could be in the $300 -$500 range depending on the number of samples taken.  You should be able to find a qualified mold testing and abatement firm in your area through a web search. Finally, you should also consider staying out of the contaminated room as much as possible until the remediation is completed. I hope this is helpful.  Good luck.... Read More

I am only licensed to practice law in Ohio but I do have experience negotiating leases for oil & gas properties in Ohio.  In that practice, I also understand the types of terms and conditions that are typically included in a permit to drill and O&G well.  Based on that experience, my thoughts on your situation are as follows. First of all, you need an attorney licensed in the state of Texas.  Your state has a long history of O&G drilling and I understand that O&G permitting requirements in Texas have traditionally been less stringent than some other parts of the country.   That being said, the permit probably has some restrictions meant to protect neighboring properties.  The question is whether those restrictions extend to any limitation on noise and odor. In many states, noise and odors are considered a public nuisance when they exceed certain thresholds.  The threshold levels for public nuisances are typically established at the local governmental level.  Typically, a municipality and/or urban township can be expected to have lower threshold limits than a rural township. If you are not ready to engage a Texas attorney to help you, I suggest that you contact your local health department to seek their guidance on lodging a nuisance complaint.  I hope this helps you weigh your options.  Good luck.  ... Read More

I am only licensed to practice law in Ohio so my response is limited by that restriction.  That being said, my suggestion for you is to read the New York statute prohibiting littering.  By way of comparison, the Ohio statute prohibiting littering is found at Ohio Revised Code 3767.32 and provides as follows. (B) No person, without privilege to do so, shall knowingly deposit litter, or cause it to be deposited, in a litter receptacle located on any public property or on any private property not owned by the person unless one of the following applies: (1) The litter was generated or located on the property on which the litter receptacle is located; (2) The person is directed to do so by a public official as part of a litter collection drive; (3) The person is directed to do so by a person whom the person reasonably believes to have the privilege to use the litter receptacle; (4) The litter consists of any of the following: (a) The contents of a litter bag or container of a type and size customarily carried and used in a motor vehicle; (b) The contents of an ash tray of a type customarily installed or carried and used in a motor vehicle; (c) Beverage containers and food sacks, wrappings, and containers of a type and in an amount that reasonably may be expected to be generated during routine commuting or business or recreational travel by a motor vehicle; (d) Beverage containers, food sacks, wrappings, containers, and other materials of a type and in an amount that reasonably may be expected to be generated during a routine day by a person and deposited in a litter receptacle by a casual passerby. So, by a strict reading of this Ohio statute, a neighbor next door commits the criminal offense of littering in Ohio by placing his trash in your garbage can.  If New York law has a similar provision, and if your neighbor continues to ignore your demands to stop such actions, you could file a criminal complaint with your local police department. If that does not work, you could bring a civil court action against the neighbor for trespassing on your property.  At common law, a trespass occurs when one enters upon another person's property without permission.  You may want to check the New York statutes on trespass as well.  Good luck.  ... Read More

First of all, I am only licensed to practice law in Ohio so my response is limited by that restriction. Second, this is really a criminal law issue, which is not one of my primary practice areas. That being said, my suggestion for you is to read the ticket or the criminal complaint that was filed against you very carefully to determine the particular littering statute that you are being accused of violating.  Whether the charge against you is valid will depend on the wording of the statute.  For example, the Ohio statute prohibiting littering is found at Ohio Revised Code 3767.32 and provides as follows. (A) No person, regardless of intent, shall deposit litter or cause litter to be deposited on any public property, on private property not owned by the person, or in or on waters of the state unless one of the following applies: (1) The person is directed to do so by a public official as part of a litter collection drive; (2) Except as provided in division (B) of this section, the person deposits the litter in a litter receptacle in a manner that prevents its being carried away by the elements; (3) The person is issued a permit or license covering the litter pursuant to Chapter 3734. or 6111. of the Revised Code. So, by a strict reading of this Ohio statute, the fact that you never intended to leave your cans in that location is not a valid defense because the intent is not determining factor.  By no placing the empty cans in a litter receptacle that would prevent such litter from being carried away by the elements, your actions (no matter how well intentioned) meet the definition of littering. In conclusion, the answer to your question will defend on how the North Carolina littering statute is worded.  I hope this helps.... Read More

Dear Anonymous- You should immediately take the following steps to address you dilemma: 1. Go onto the U.S. EPA website http://www.epa.gov/ and/or CalEpa http://www.envirostor.dtsc.ca.gov/public/ and/or State Water Resources Control Board website http://geotracker.waterboards.ca.gov/ and download the information about your neighborhood and the arsenic information. 2. Contact the USEPA/DTSC/RWQCB Manager for the site. Give him/her your address and request copies of all test results for your specific address/lot number that are not already posted on these websites. You will need objective scientific data about your house for your lender rather than anecdotal information such as "the grass won't grow." If the USEPA/DTSC/SWRCB has not sampled your lot yet request that they do - - you and your family's health may be at risk. 3. Send all information by certified mail with a cover letter to your lender. Lenders generally do not foreclose on contaminated property and do not even want the legal or financial responsibility for managing it. Hence, the importance of having actual information about your lot. 4. You may want to call your County's lawyer referral service. The fact your lot sits above or adjacent to a contaminated site may have been known to your seller and/or its agent. You may have rights against them that may soon be expiring. Good luck and God Bless! Tom Bois    ... Read More