Businesses trying to clean up their acts are running into delays at government agencies.

Businesses trying to clean up their acts are running into delays at government agencies

As some businesses have tried to change their ways and become good environmental citizens during the past few years, they have often received little cooperation from the governmental agencies, according to a number of environmental attorneys.

Instead of doing as little as possible at the latest possible date, some more progressive businesses developed their own multi-million cleanup plans or invested in costly equipment. But when they have gone to government agencies for approval, the agencies refuse to comment or place the matter on the back burner, said William S. Waller, an associate at the downtown Los Angeles law firm of Lillick & McHose.

"The agencies won't give you the time of day," Waller said. "No one wants to sign off on a site or be second guessed later," he explained.

The problem is not specific to any agency. The grumbling could apply as easily to the Department of Health Services, state or county level, as the Regional Water Quality Control Board, or the South Coast Air Quality Management District, critics said.

The issue could be air, ground water, hazardous waste or soil contamination. The situation most frequently surrounds the sale of a property, but can also be a developer seeking approval on a project.

The Regional Water Quality Control Board, for instance, has reportedly only twice given "comfort letters" to sellers of property to show potential buyers. The comfort letters are statements assuring the agency will not take actions against the property owner provided he carries out the approved cleanup plan.

The agencies' reluctance is partly because no one knows how clean is clean, said Jeffrey Loeb, a partner at the downtown law firm of Loeb & Loeb.

Muddying the waters is new technology, which not only may make current methods of cleaning up obsolete, but also affects the perception of the existence and degree of a hazard.

In addition, there is "background contamination" to contend with -- naturally occurring pollutants. It is often unclear whether an obligation to clean up a site requires the eradication of the background contaminants, Loeb indicated.

Because agencies are unwilling to stick out their necks, applicants have to settle for something less. "Generally the best you get is the absence of an order to do something else," said Gary Meyer, a partner at the downtown law firm, Parker, Milliken, Clark, O'Hara & Samuelian.

If you are lucky, the agency may respond with something along the lines of "based on studies and reports you've prepared, it appears the site is remediated, but we do not waive right to review the site again should new information become available," Meyer related.

Even if that were acceptable to the applicant, a company looking for sign-offs from a few agencies may have trouble getting all of them to go even that far.

Even those who do not find the agencies intransigent are wearied by the amount of time required by the process.

"They take longer than any transaction can sustain," Loeb said. For example, a remediation investigation for the Department of Health Services may take 10 months, and that is only one of the many hoops a company has to pass through, Loeb said.

In some cases, further delays are added because the agency must open up the administrative process to public comment and hearings.

"There is a natural tension between developers who want things done quickly and the government agency which moves very slowly and with great circumspection," said Terry Avchen, a partner at the Century City law firm, Christensen, White, Miller, Fink & Jacobs.

Those delays may sometimes be justified by the nature of the problem, and like it or not, businesses should sometimes live with the time delays because of what is at stake, Loeb advised. "The cost of cleaning up contamination of the drinking water can be tremendous, making the delays involved not unwarranted," Loeb said.

Regardless, executives will chomp at the bit, oblivious to the fact their expectations may be unreasonable. "Creating certainty is not what the agencies see as their mission," said Roger Chittum, a partner at the Century City law firm, Rosenberg, Chittum, Mendlin & Hecht. Just as the Internal Revenue Service and Securities and Exchange Commission often prefer to keep private parties guessing, the ambiguity associated with an environmental review also may serve a purpose -- companies kept in the dark may well go beyond some minimum threshold they would settle for with more specific information.

Policy objectives aside, most of the agencies lack sufficient funding and manpower to promptly address every request for review.

For instance, the Regional Water Quality Control Board has only eight employees charged with reviewing a backlog of 1,200 cases, said Hank Yacoub, director of the toxic division. Even in this unpromising setting, there may be a ways to catch the ear of the administrators. It helps to be represented by someone who knows how to deal with the agency, Avchen suggested. Most important, perhaps, is to use a methodology with which the agency is familiar and work with the agency each step of the way, Loeb said. "You have to talk their language; these are scientists in government clothing, so you should follow something like the scientific method," Loeb added.

It may also help to have a realistic expectation of how far the agency can and will go. "You have to learn to negotiate in an atmosphere of uncertainty," Chittum said.

In most cases, the parties ultimately decide seeking agency comfort is not worth the time and effort. Consequently, most environmental matters are now resolved on a self-policing basis. Because no one wants to assume title to a contaminated property, the cleanup has become the object of negotiation in real property transfer, the most frequent context in which environmental approvals are sought.

This self-regulation, however desirable, comes with the drawback that standards are often not clearly set forth.

The agencies have recently tried to come to grips with this. The Department of Health Services, for instance, has recently issued a protocol with steps a private party can take on its own initiative.

Even with the agencies out of the picture, companies seeking to comply with environmental laws may become frustrated with their own consultants, who always seem to push for yet more testing. Like the agencies, consultants are reluctant to go out on a limb in declaring a property clean.