Many businesses have been facing issues about complying with the environmental legal requirements while COVID-19 has been widespread. Managing the environmental due diligence in such a crisis of coronavirus pandemic has become very challenging. It is especially difficult in cases where some physical property inspections have to take place.
With governments issuing the lockdown orders, it has become even tougher to find clarity on documenting the efforts of businesses. Parties involved in any transactions may need to meet the obligations of phase 1 environmental site assessment but feel helpless. Thus, it is critical to find creative solutions to arising questions. Below, we give tips on a few flexible approaches.
Environmental Due Diligence
In the wake of coronavirus, several control measures have been taken, while we notice many business shutdowns and financial risks. Social distancing has been restricting due diligence procedures in cases of real estate and corporate transactions. On the other hand, it is significant to complete these compliance procedures for reasons like property purchase, sale and refinances. In cases of lease and title transfer, the buying party has to qualify for defences to liability under some acts. All this is not possible without ASTM-compliant site assessment.
The financial institutions will at least require phase 1 environmental site assessment in concern with insurance coverage and project financing. The good thing is that the parties can check for flexibility that some companies may provide towards standards compliance. Expert environmental consultants can conduct some procedural components on a desk-top basis. It is also allowed to specify the limiting conditions and data gaps in deviational circumstances.
With the involved parties’ consent, some business agreements may consider reflecting the ability to conduct site visits. However, a visual site inspection is the core need of environmental due diligence. If not done within 180 days of transaction closure, the phase 1 assessment cannot qualify a party for defences. Thus, environmental consultants should consider creative site inspection methods, such as the use of drones. There can also be the video tracking of a facility person doing actual site surveillance.
Teams And Plans For Risk Management
To look at the environmental clean-up and compliance obligations, the businesses should consider making dedicated teams. These teams should be specifically responsible for implementing the correct environmental measures during the times of COVID. A structured team approach defines hierarchical roles that are critical to ensure that the required tasks are performed on time.
Besides, the businesses should be aware of their existing policies and plans for risk management in times of crisis. They may come across some protocols that can help them deal with the legal compliance requirements during a pandemic period. For instance, a business may have a plan for hazardous waste management or a system for environmental management. The businesses may even have relevant plans on preventing compliance under such circumstances.
Impact Assessment On Future Task Deadlines
Another helpful tip is to check on the environmental tasks your business needs to complete in the short-term. Look at any sampling, submittal and remedial actions you will need to take. Check for the upcoming tasks deadlines and environmental commitments. This will keep you ready to deal with the compliance issues and challenges while the pandemic is still in existence.
If COVID will affect your future activities and efforts, prepare by possessing the right resources. You may require external vendors or assistants, and it is necessary to see whether they will be available when needed. Preparation can make you handle any future disruptions.
Review Of Legal Documents And Applicable Regulations
Every business, including yours, may benefit by reviewing the laws applicable to environmental compliance obligations. Go through the EPA policies regarding clean-up agreements, permits and orders you may require. Consulting the legal instruments may provide information on the reliefs that the government may offer during emergency timings. Additionally, it is beneficial to keep tracking the latest updates on all these laws and guidelines that apply to shutdowns. All this can be checked in the force majeure clauses set for pandemics and such emergencies.
Case And Effort Documentation
If there are questionable provisions for emergency timings, then these may lead to invoking the concerned authority. It is important to have a sufficient base in cases of delayed performance. As against this, it is also necessary that the businesses should document all their efforts. The businesses should have compiled information on any delayed performance due to disruptions caused by COVID. All such documents may come in handy if any petitions need to be supported.
While the environmental site assessment may help with due diligence, the constructors and other businesses should also plan for further challenges. In times of COVID, they should work in a structured manner, document their efforts, and be ready for the future impact of coronavirus pandemic on their compliance activities.