If your underground tank leaks, your septic system fails, or your home needs lead abatement, you will call in a qualified, licensed contractor to perform the needed work. And that contractor will perform the work up to legally binding specifications. Which is well and good if you or your insurance company will pay for the work.

But what if you believe someone else should pay? What if the former homeowner is responsible because he or she failed to disclose the condition? What if your neighbor is responsible because the leak originated on his or her property? What if a trucking company is responsible for a discharge that originated from an overturned truck? These are all real life examples.

In those cases, and others where litigation may be needed to recover cleanup costs, the contractor should not think soley about meeting technical requirements. Rather, the contractor must take additional measures required to preserve evidence and prove a cost recovery case in court. You see, the contractor must think about more than dirty soil and water -- he or she must also think about preservation and development of evidence.

For example, if soil is removed, the other side in litigation may allege that too much soil was removed and seek to avoid paying the full cleanup costs. Sure, the cleanup technical requirements may not have required formal documentation that every truckload of removed soil was dirty, but a jury may require such proof when trying to recover the costs from the responsible party.

If a tank is removed and it has holes in it, will you keep the tank, or pieces of it? Will you notify probable cost recovery targets in advance, before the tank is taken to a scrap yard? This will offer the other side a chance to evaluate the tank independently. And if it elects not to take advantage of this invitation, at trial you can prove that the opportunity was offered and denied.

If you are trying to convince a court that someone else should pay for an expensive cleanup, the more the plaintiff knows about the extent of combination before a lawsuit is filed, the easier the case may be to settle down the road. Which may save everyone a considerable amount in litigation expenses.

If your environmental problem seems like a large one that really should be paid for by someone else, I very strongly suggest that your retain legal counsel as early in the process as possible. That lawyer will work with your consultants while they are performing their work. They will ensure that evidence is preserved and that pro-active extra measures, which may cost only a little extra but may mean a lot at trial, are evaluated before doing so becomes difficult because the remediation has too far advanced.

No, you should not hire a lawyer every time you have an environmental issue. But issues that seem likely to require a lawyer after the cleanup is performed need legal attention before the work is completed.

It's strictly a timing issue. Often waiting until after the work is completed means waiting too late in the process. And that makes no sense at all.

Log in to comment