Month: October 2015

Long Term Stewardship, or LTS, is the most recent hot topic in the business of environmental claims, and understanding it is extremely important for constraining long-tail cleanup costs. In site cleanup and closure strategies that focus on risk-based concepts, the elimination of human health pathways is the determining factor for closure.  Often, closure plans include intentions to manage exposure through a series of institutional controls designed to limit future land use, although no provisions are in place to ensure that they are maintained following regulatory closure. Recent developments in environmental policy at the State and Federal regulatory levels are promoting the creation of guidelines requiring the need for specific LTS plans describing the monitoring and assessment activities to be performed.  Due to the potential for extremely long time periods over which LTS must be performed, the associated costs are high.  High enough, frequently, that monetary decisions are made to remove a larger amount of contamination during initial cleanup activities to limit the breadth or length of LTS requirements. With increased regulation of post-closure LTS activities, it has become, and will remain, extremely important to quantify LTS costs prior to finalizing remedial strategies.

Two recent industry events provided a special emphasis on this issue, as business owners, regulators, environmental consultants and insurance carriers attempt to fully understand how to quantify and evaluate the impact of LTS costs.  This evaluation is extremely important during the planning stages of site cleanup activities. The 2015 Annual Conference of the Federation of Environmental and Toxic Tort Issues (FETTI), held October 7-9, 2015, invited four environmental industry experts to discuss the issue. Attorney David R. Gillay (Barnes & Thornburg) presented legal considerations, Theresa Evanson (WDNR Remediation & Redevelopment) presented some challenges faced while exploring LTS issues in Wisconsin, Sherri Estes (U.S. EPA) discussed the Federal perspective, and Jeff Carnahan (EnviroForensics) presented a detailed analysis of how LTS costs and active remediation costs are balanced during remedial planning.

A seminar presented on October 22, 2015 by the Midwestern States Environmental Consultants Association (MSECA) also focused on LTS issues.  Representatives from the Indiana Department of Environmental Management and the U.S. EPA were on hand to present information and lead LTS discussions. The message delivered by the agency representatives was that LTS requirements will definitely be regulated in the near future, both at the State and the Federal level.  As presented in another case study by Jeff Carnahan, there are many times where larger upfront capital expenditures, in the form of active remediation, will reduce overall project costs and shorten timeframes when upcoming LTS requirements are considered.

About the Author:

Jeff Carnahan, L.P.G.
Vice President, Chief Technical Officer

866-888-7911
jcarnahan@enviroforensics.com

Jeff Carnahan is a Licensed Professional Geologist (LPG) with over 17 years of environmental consulting and remediation experience.  Mr. Carnahan’s expertise has focused on the investigation and interpretation of subsurface releases of hazardous substances for the purpose of evaluating and controlling the risk and cost implications to his clients.  While managing sites ranging in size from retail gas stations and dry cleaners to large manufacturing facilities, Mr. Carnahan has amassed extensive experience working with releases of chlorinated solvents within voluntary and enforcement cleanup programs for various State agencies and the U.S. EPA. Throughout his career Mr. Carnahan has provided technical support to the legal community regarding the cause, origin, transport and potential cost of environmental releases. Additionally, Mr. Carnahan has over 13 years of experience in the investigation and mitigation of vapor intrusion issues and leads the VI Assessment Team at EnviroForensics. His experience and insight make Mr. Carnahan uniquely qualified to advise his clients on potential environmental liability issues and cost implications.

In the past number of years, regulatory agencies have come to consider risk-based site closures an acceptable cleanup strategy. The old-school approach relied upon a standard set of exposure assumptions expressed through default cleanup criteria that were applied to every site. This meant that they had to be conservative enough to be protective of human health and the environment in every possible site setting. While this provided clear guidelines, it was not always practical or even possible for these standards to be met, and many times the default criteria were overly conservative. Because of this, more and more state regulatory agencies have come to accept risk-based closures.

A major difference between risk-based closure and the traditional approach is that risk-based closure is based on site-specific exposure conditions. The primary objective of risk-based closures is preventing human or ecological exposure at unacceptable health levels, and because of this, it is possible that soil and groundwater cleanup may not even be necessary if the levels of contamination do not pose a risk to human health or the environment. However, if contamination is left in place a series of institutional and engineered controls are necessary to ensure that site conditions at the time of closure remain constant.

Following the issuance of documents officially recognizing risk-based cleanup approaches, the environmental consulting and legal community jumped on the opportunity to apply these methods as a cost saving measure. For example, consultants will argue that if contaminated groundwater is not being used for drinking water, there should be no drinking water exposure pathway; or because no one would be coming into physical contact with the contaminated water, there should be no dermal contact exposure pathway.

While this may seem to make sense, it is not an argument that is easy for regulatory agents to support. If all contaminated sites were handled this way, little to no cleanup would occur and contaminant conditions would continue for decades. This leaves little confidence to regulatory agents that the site’s long-term risks will be managed. Additionally, as the regulation of institutional and engineered controls becomes more stringent, the cost of these long term stewardship efforts is beginning to rival the cost of actual cleanup activities.

In the long run, it is best to actively remediate source areas and create a long-term monitoring strategy. This is the approach used by EnviroForensics, and we have obtained more regulatory closures of sites contaminated with dry cleaning solvents in the last five years than any other company. President and CEO, Stephen Henshaw, further details this approach in his article “Risk-Based Site Closures Should Include Remediating the Source Area” (as seen in the March 2014 issue of Cleaner & Launderer).

One of the issues that arises when dealing with an environmental investigation on your property, in addition to the obvious concern regarding the potential contamination itself, is the way that contamination can affect your, or your company’s, public image. The reflexive reaction may be to hide the issue as much as possible, but doing so can have negative ramifications in the long run. The best strategy typically includes creating a communications plan that explains the situation and allows you to stay in front of the issue.

If your site does have contamination, you will likely be required to monitor neighboring sites, as well. In this case, a communications plan would come in extremely handy.  Handouts could be presented to the owners and tenants of these sites in order to inform and outline the sampling process and provide any health risk details, request site access to off-site buildings, and establish timelines for action if contamination exists. If VI sampling or monitoring will need to occur at homes and buildings located over a larger area, such as an entire neighborhood, a more formal communications plan is advised that would likely also include a group information meeting.

In his article “Dealing with the Perception of Risk: The Value of Having an Effective Communications Plan” (as seen in the October 2013 issue of Cleaner & Launderer), Stephen Henshaw, President and CEO of EnviroForensics, explains the importance of an effective communications plan for businesses dealing with environmental investigations. He lists several elements that such a plan should have, including:

• Establishing the protocol of informing off-site property owners and occupants of the sampling results,
• Approaching off-site property owners and occupants to inform them of the process being undertaken and request access to their property or building to conduct additional sampling,
• Sharing the results with the parties,
• Explaining any existing exposure concerns,
• Proposing any necessary exposure mitigation or elimination measures that would be undertaken to protect the affected people.

Ultimately, a strong communications plan in these circumstances will allow you and your company to explain the situation to those who will be affected and will provide opportunities for discussions between the parties at risk and a technical expert and/or regulator. It is best to be forthright with and transparent to the community, avoiding any perception by individuals or the media as being calculating or deceptive. This may not always be the most comfortable or easiest approach, but it will pay off in the end.