Author: Jeff Carnahan

Indiana House Approves Bill Limiting State Environmental Regulation

Posted on by Jeff Carnahan

Tuesday, February 2, the Indiana House approved a bill that would prevent state regulatory agencies from passing environmental laws tougher than those enforced by the federal government. The Republican-controlled House voted 64-33 to send the bill to the Senate for consideration.

While the bill was lauded by industry groups, environmental and public health groups were beside themselves.  The bill was introduced by Rep. David Wolkins (R-Winona Lake) and is aimed at stopping the Indiana Department of Environmental Management (IDEM) from enforcing any law that is more strict than those established by the United States Environmental protection Agency (USEPA).  Citing the cost to businesses of environmental compliance as a reason for needing this legislation, Rep. Wolkins stated, “Political appointees come and go.  And if we get somebody who is a very rabid environmentalist, the fact is, they just don’t pay attention to the cost of things.”

While such legislation could potentially save businesses money by capping potential expenditures for environmental compliance and cleanup, there could be debate as to whether or not such legislation is actually good for the citizens of Indiana.  Over the past several years, Indiana has ranked as one of the most polluted states in the country.  In 2011, the Daily Finance ranked Indiana as the second “least green” state in the country.  In 2015, Wallethub ranked Indiana the 47th least eco-friendly state.  Additionally, the Natural Resource defense Council routinely ranks Indiana in the bottom 10% with respect to air quality.

Based on Indiana’s distinction on the national stage for displaying a low level of environmental protection, it would seem counterintuitive to remove additional power from the IDEM.  In a state possessing a political climate such as Indiana, it’s unlikely that individual environmental laws that may be more stringent than the USEPA’s standards would be passed.  However, in the event that such a move should be necessary in the future, even with political concordance, the current bill under consideration would tie the hands of future lawmakers.

The USEPA has given individual states the right to enforce their regulations in a manner that is at least as stringent as their own.  It seems that even the USEPA recognizes that some environmental regulations can be better enforced at the state level where the agencies can tailor their enforcement to meet the specific needs of the state.  This is not unlike how states govern themselves independently beneath the umbrella of the federal government.  This bill being considered appears to contradict the very process by which it may be created.

In the wake of several examples of unpopular state lawmaking episodes, concerns are growing that Indiana is at a high risk of losing our smart, well-educated and creative young talent.  As the bill moves on to the Senate Environmental Affairs Committee chaired by Senator Ed Charbonneau (R-Valparaiso), opportunities exist for public reaction to inform the committee members of Indiana citizens’ true feelings on this matter.  As Rep. Wolkins states, “Political appointees come and go.” If this bill passes it could prove to be legacy legislation that is not in the best interest of Indiana’s future.

Below are the members of the Indiana House and Senate Environmental Affairs Committee, with links to contact them.  

Indiana House Environmental Affairs Committee

Chair: Rep. David Wolkins
Vice Chair: Rep. Greg Beumer
Majority Members:
Rep. Mike Aylesworth
Rep. Sean Eberhart
Rep. William Friend
Rep. Don Lehe
Rep. Doug Miller
Rep. Donna Schaibley
Rep. Heath VanNatter


Indiana Senate Environmental Affairs Committee

Chair: Sen. Ed Charbonneau
Ranking Member: Sen. Doug Eckerty
Majority Members:
Sen. Eric Bassler 
Sen. Phil Boots 
Sen. Liz Brown 
Sen. Rick Niemeyer 
Sen. Scott Schneider 

EPA Sets Timeline for Proposed Addition of Vapor Intrusion Component to the Hazardous Ranking System

Posted on by Jeff Carnahan

The U.S. Environmental Protection Agency (EPA) proposed the addition of a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS) last week. The SsI component includes both shallow water contamination that could intrude occupied structures and homes and Vapor Intrusion (VI). The focus, however, falls on the VI exposure pathway, which can now be the sole reason for a site being added to the National Priorities List (NPL) via the HRS process.  The proposed rule will be published in the Federal Register, thereby enacting a sixty day public comment period.

The HRS is a numerical screening system that uses information from initial, limited investigations to determine a site’s potential to harm human health or the environment. Sites receive a score ranging from 0 to 100, and those with scores of 28.50 qualify for the NPL—although the EPA typically takes other factors into consideration before officially placing a site on the list. Sites on the NPL are eligible for long-term remedial action funded by the federal Superfund program.

In the proposed rule, the EPA says, “This addition will allow an HRS evaluation to directly consider human exposure to hazardous substances, pollutants, or contaminants that enter regularly occupied structures through subsurface intrusion in assessing a site’s relative risk, and thus, enable subsurface intrusion contamination to be evaluated for placement of sites on the NPL.”

While it is not anticipated that the number of NPL sites will drastically increase, it is likely that the EPA will be paying more attention to sites with only VI potential as a larger part of the program.

The best option for sites placed on the NPL is to find the right consultant to conduct the cleanup and address VI concerns. EnviroForensics is among the nation’s leaders in vapor intrusion and sites contaminated with PCE and TCE, and our VI team possesses the skills and expertise to handle VI assessment and mitigation. Additionally, we work to secure alternative funding for our clients by locating and utilizing historical insurance policies.

VI exposure concerns have become more routinely addressed within the past few years. As VI gains better understanding and awareness, regulations on it will continue to be created. Business owners should be proactive in dealing with VI risk on their properties, and any investigation or remediation performed at a site should include a thorough VI assessment.

About the Author

mainjeff


Jeff Carnahan, L.P.G.
Vice President, Chief Technical Officer
866.888.7911
jcarnahan@enviroforensics.co

Jeff Carnahan is a Licensed Professional Geologist (LPG) with over 18 years of environmental consulting and remediation experience. In his role as Chief Technical Officer, Jeff encourages and upholds the superior level of technical expertise found at EnviroForensics. His 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. He 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 Jeff has provided technical support to the legal community regarding the cause, origin, timing, and cost of environmental releases. His litigation and expert opinion experience has focused primarily on chlorinated solvents and cost-recovery claims on behalf of insurance policyholders. Additionally, Jeff has over 14 years of experience in the investigation and mitigation of vapor intrusion issues and oversees the VI Assessment Team at EnviroForensics.

California Perc Ban: 2023 Deadline Inching Closer

Posted on by Jeff Carnahan

DRYCLEANING SOLVENT TO BE PHASED OUT IN NEXT TWO YEARS AND OTHER STATES CONSIDER BANS OF THEIR OWN 

California banned the installation of new Perc dry cleaning machines in 2007 and required that old machines be shut down by 2010. The law also stated that all Perc machines must be taken out of service by 2023. In 2011, the U.S. Environmental Protection Agency approved California’s Perc ban. 

Perc has long been in use as an effective drycleaning solvent, and much environmental contamination from Perc is linked to historical drycleaning operations. In the 1970s and 80s industries that used chemicals for cleaning and degreasing didn’t realize that those chemicals could result in soil and groundwater contamination when spilled. It’s also worth noting that the EPA was not established until 1970, while dry cleaning started in the 1930s. 

Learn more about the history of Perc use in drycleaners. 

Currently, the EPA regulates Perc under the Clean Air Act. In compliance with the Clean Air Act, the EPA has developed standards for controlling Perc emissions. The EPA also conducts two reviews to monitor the implementation and success of these standards. Every eight years, they perform a technology review, which seeks improvements in air pollution controls and prevention. The EPA also conducts a residual risk review to assess human health effects after certain standards have been put into effect.

PERC BANS IN OTHER STATES
California is not the only state banning Perc from dry cleaning operations Minnesota lawmakers passed a ban in March 2021 to take full effect by 2026. New York State banned the use of Perc solvent in co-located residential facilities at the end of 2020 and will phase out the use of third generation drycleaning machines by the end of 2021.  

WHAT DRYCLEANERS SHOULD DO TO PREPARE FOR A POST-PERC WORLD
Drycleaners in all states should be considering this possibility and seeking measures to reduce or eliminate their own use of Perc in their operations. This possibility also makes now an ideal time for drycleaners to consider proactively addressing any potential contamination issues they may have—the first step of which is hiring an environmental consultant. EnviroForensics is perfectly equipped with a team of environmental professionals who possess the skill and expertise to investigate and remediate environmental contamination from the use of Perc in dry cleaning operations.  

Learn more about our environmental services for drycleaners and contact us today.

Vapor Intrusion Exposure Concerns Could Cause Sites to Be Reopened

Posted on by Jeff Carnahan

Vapor Intrusion (VI) has become a routinely addressed environmental exposure issue within the past few years.  Especially at sites where a spill of Tetrachloroethene (PERC) or Trichloroethylene (TCE) has occurred. Many state environmental agencies have provided guidance on dealing with VI issues, and now the US EPA has recently finalized their guidance for use at federal sites.  In prior years, however, assessment of the VI exposure pathway was often excluded from a site’s investigation and remediation process. Since VI was not really on the regulator’s radar, many sites achieved closure without VI having   been evaluated.  As VI has become a routine part of environmental investigations, regulatory agencies are now beginning to reassess closed sites to see if VI exposure issues have been inadvertently missed.  Very recently, it has been reported that the Indiana Department of Environmental Management (IDEM) has joined other states in reopening closed sites that warrant further assessment for VI risk.

EnviroForensics stresses to our clients and regulatory agencies the importance of a well-planned environmental investigation and remediation process — which includes a thorough VI assessment. Since many of our clients are dealing with, or have previously dealt with releases of PCE or TCE, the concern that VI exposure could be present is very real. Whether responsible parties are just embarking upon the investigation process, in the midst of the cleanup process, or approaching regulatory closure, an awareness of the importance of VI assessment and mitigation is paramount to managing risk and liability.

If you are near the point of site closure, you and your consultant should determine which continuing obligations will be required by IDEM. Once remediation is complete, all VI pathways and ongoing mitigation should be clearly outlined and understood by all parties involved. However, it is possible to eliminate the need for continuing obligations for the VI pathway if it has been thoroughly evaluated and remediated. This point is especially compelling when dealing with releases of PCE and TCE since these compounds are very resistant to degradation under naturally occurring conditions in the subsurface environment. In other words, if PCE or TCE were present at levels high enough to be of concern for VI exposure back when a site may have been closed without VI assessment, the risk is likely still present.

Not only is it extremely important to follow the contemporary guidance for VI assessments in support of investigation, remediation and closure for PCE and TCE sites, it is also prudent to have an expert look at your closed site files to perform a preemptive assessment of potential VI issues.  That way, if the regulatory agency has a look at your closed site and considers reopening it, you can be a step ahead.  EnviroForensics is among the nation’s leaders in vapor intrusion and sites contaminated with PCE and TCE. Our VI team is highly skilled in handling VI assessment and mitigation. We utilize our expertise as well as a line of specialized, field-based, analytical tools to obtain the necessary details during VI assessments. We are successful in handling all VI concerns for our clients’ sites and ensure that our work is approved by state and local regulatory agencies. If you are concerned that your closed site may be subject to reopening, we can help put your mind at ease.

About the Author

mainjeff
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 18 years of environmental consulting and remediation experience.  In his role as Chief Technical Officer, Jeff encourages and upholds the superior level of technical expertise found at EnviroForensics.  His 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.  He 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 Jeff has provided technical support to the legal community regarding the cause, origin, timing, and cost of environmental releases.  His litigation and expert opinion experience has focused primarily on chlorinated solvents and cost-recovery claims on behalf of insurance policyholders.  Additionally, Jeff has over 14 years of experience in the investigation and mitigation of vapor intrusion issues and oversees the VI Assessment Team at EnviroForensics.

EnviroForensics’ Dynamic Investigation Allows for Cost Savings and Defined Remediation Plan

Posted on by Jeff Carnahan

It is a common occurrence for some environmental investigations to be completed over the course of several years.  It is a known rule of thumb in the environmental industry that the longer an investigation takes, the more expensive it is. Additionally, every extra dollar spent to better understand the distribution of impacts results in a multi-dollar savings on remediation activities. It is our goal at EnviroForensics to complete our investigations in a meaningful and efficient manner that provides sufficient data for decision making, while minimizing the amount of time and money required to complete the work.

Last year, EnviroForensics began an environmental investigation at a former dry cleaning business and current coin-operated laundromat located in Indianapolis where historical operations resulted in a release of chlorinated solvents to soil and groundwater beneath the property.  In September 2015, EnviroForensics completed a high-resolution, dynamic investigation over the course of only two weeks, which allowed our team of experts to fully understand the nature and extent of subsurface contamination in that short time window.  Over 60 borings were advanced and over 450 soil and groundwater samples were collected and analyzed onsite with a mobile laboratory.  EnviroForensics was able to evaluate sample data and make real time decisions with regard to locations for additional soil borings and focus the developing investigation to locations that were most appropriate.  Most importantly, the project team worked alongside the business owner to complete the work, including advancing 6 soil borings inside the building, in a strategic manner that allowed the laundromat to remain open for business.

In the four months that followed, EnviroForensics installed permanent groundwater monitoring wells and completed vapor intrusion exposure assessments at the Site and nearby properties to determine that no potential for contaminant exposure was present.  In February 2016, EnviroForensics staff submitted a Remediation Work Plan to the Indiana Department of Environmental Management, including a detailed evaluation of the Conceptual Site Model and an assessment of potential remedial technologies.  Because the investigation provided such a dense data set with regard to soil and groundwater contamination, very few assumptions needed to be made when developing the remedial and regulatory closure approach.  Often times when insufficient data is available, an overly aggressive remedial approach is prescribed.  In this case, the project team confidently selected a remedial strategy best suited to address contamination at the Site and eliminate the potential for future exposure.

EnviroForensics recognizes that many of our clients wish to identify their environmental liabilities and get them resolved as soon as possible.  By completing the investigation in an aggressive manner and preparing the Remediation Work Plan in less than one year, EnviroForensics has been able to provide peace of mind to our client, with their knowing that a scientifically sound cleanup strategy will soon be in place.  Developing a detailed Conceptual Site Model will also allowed EnviroForensics to more accurately determine the costs associated with the upcoming remediation and closure activities. The extra effort upfront during the investigation is expected to result in a significant cost savings over the life of the project. The shorter than average timing of investigation activities alone likely saved the project hundreds of thousands of dollars.

About the Author

matt-bono
Matthew Bono
Project Manager
866.888.7911
mbono@enviroforensics.com

Mr. Bono has over 3 years of professional experience in environmental consulting. He has been involved in subsurface investigations and remediation activities at facilities and properties impacted with chlorinated solvents, petroleum products, and other hydrocarbons throughout the state of Indiana. Matt has assisted with data evaluation and reporting on all phases of projects from investigations through closure and has provided project management services including work scope development, budget management, and personnel management. He has provided oversight during remedial plan implementation, incorporating multiple technological approaches including pump and treat systems, soil vapor extraction (SVE), enhanced anaerobic bioremediation, thermal desorption, and soil excavation. Matt also has experience in contaminant transport and groundwater flow modeling. He has worked closely with clients and subcontractors, as well as state and federal regulators.

Indianapolis Creates Ideal Climate for Business Headquarters

Posted on by Jeff Carnahan

Forbes has ranked Indianapolis eighth on its 2015 list of Best Places for Business and Careers. Charlotte, North Carolina and Dallas, Texas are among the cities Indianapolis outranked. Furthermore, the State of Indiana was ranked eighth on the Forbes 2015 Best States for Business list.  Forbes credited this ranking partly to Indiana’s top ranking in the regulatory category of the Mercatus Center’s “Freedom in the 50 States.” Forbes also named Indiana sixth in quality of life.

EnviroForensics is proud to have its headquarters located in a business-friendly city like Indianapolis. We have been located in Indianapolis since 2001 and headquartered here since 2005, and we have experienced continued growth ever since. We’ve grown so much, in fact, that we have outgrown our current building.

To accommodate continued growth, we are constructing a new, larger headquarters in downtown Indianapolis. We are renovating 23,000 square feet of space for the new building, which will be located at 825 N. Capitol. Its anticipated completion date is April, 2016.

For the past month, we have been posting weekly updates of construction on our EnviroForensics Facebook page. We will continue to do so until the building is complete, so follow us on Facebook to watch the progress!

Below is a picture of the building’s current state, as well as what it will look like when finished.

collage-2016-01-22

 

EnviroForensics to Present Two Abstracts at the 26th Annual AEHS Conference on Soil, Water, Energy and Air

Posted on by Jeff Carnahan

March 21-24 2016, the Association for Environmental Health and Sciences (AEHS) Foundation will hold its 26th annual Conference on Soil, Water, Energy and Air in San Diego, California. The annual conference brings together 500-600 environmental professionals to share information on technological advances, new scientific achievements and the success of current environmental regulation programs. Attendees are able to present findings, ideas and recommendations to professionals from a variety of specialties and backgrounds, such as state and federal regulatory agencies, environmental engineering and consulting firms, the petroleum and chemical industries, military and academia. The program is tailored each year to meet the ever-evolving needs of the environmental field and focuses on important and relevant environmental issues.

The conference includes platform and poster sessions detailing research, advances in science, case studies and the presentation of new investigatory and remedial methods and regulatory guidance. The EnviroForensics Vapor Intrusion (VI) team will present two abstracts that have been approved at the upcoming conference: “The Production and Management of Methane in Soil Gas during Remediation at Drycleaner Sites” and “The Cost and Liability of Evolving Technical Guidance.”

“The Production and Management of Methane in Soil Gas during Remediation at Drycleaner Sites” will explain how the use of in-situ enhanced reductive dechlorination (ERD) inoculants as a groundwater contaminant mass reduction method produces methane in both the dissolved phase and vapor phase. Preliminary estimation, monitoring and mitigation methods will be included in the presentation, as well as a discussion of lessons learned and upcoming advancements.

“The Production and Management of Methane in Soil Gas during Remediation at Drycleaner Sites” has also been approved for presentation at the Tenth International Battelle Conference on Remediation of Chlorinated and Recalcitrant Compounds, which will take place May 23-26 in Palm Springs, California. The Battelle Conference is one of the industry’s premier remediation conferences, attracting attendees from across the country and around the world. EnviroForensics Senior Geochemist Keith Gaskill will present the study.

“The Cost and Liability of Evolving Technical Guidance” is a study in which a number of sites with nearly 100 subsurface releases of PCE or TCE have been reassessed in light of technical guidance changes that have occurred since 2002. The presentation will include a comparison of the assessment and mitigation costs that would have occurred if performed under older state and federal VI guidance (more conservative) versus the latest version of the Final USEPA VI guidance (less conservative).

 

Contamination Cleanup—Without the Mess

Posted on by Jeff Carnahan

Cleaning up contamination at the site of your business can be a daunting prospect. In addition to concerns about the associated costs, worries about how the cleanup process will affect your business also arise. Questions come up such as: “Can I remain open while cleanup is occurring?” “Will I lose customers?” “Will it affect my workers?”

EnviroForensics considers these top-level concerns as we conduct environmental investigations and remediation for our clients. We strive to create as little interference in our clients’ business operations as possible while we handle environmental contamination. There are several examples of clients we have assisted in this way.

A recent example is Mercury Cleaners, a dry cleaner client of ours in Valparaiso, Indiana that is undergoing a soil and groundwater contamination cleanup while remaining open. Norman, Linda and Brett Dygert, the owners of Mercury Cleaners, received a notice of liability from the Indiana Department of Environmental Management (IDEM) after testing discovered perchloroethylene (PERC) in the soil and groundwater on a nearby property. EnviroForensics was able to work with the Dygerts and IDEM to create a remediation plan that allows Mercury Cleaners to remain open while remediation occurs.  Active cleanup is underway without business interruptions.

Klinke Cleaners is another client of ours who was able to conduct normal business operations while we dealt with contamination on one of their properties. Our team drilled for soil samples, collected vapor samples, and installed a vapor mitigation system beneath the building without disrupting our client’s workers or customers. We successfully addressed contamination on the property and obtained a regulatory site closure for the dry cleaner, all while ensuring that our client was able to run their business as usual.

Yet another example is a client of ours who is the owner of a former manufacturing facility turned furniture showroom. Historical operations from past owners caused a release of chlorinated solvents in the soil and groundwater, which migrated to other properties. To protect our client’s newly renovated showroom, our staff isolated the work area while messy subsurface investigation processes were underway. Our staff made sure that all contaminated soils and water produced during the process were quickly gathered and carefully contained.

EnviroForensics understands that, as a business owner, it is important to you that your business remain viable while contamination issues are addressed. Although it may seem like the remediation process would be disruptive and harmful to your business, we make it our priority to keep you in business while fulfilling our promise to help you deal with environmental liabilities.

Air Emissions as CERCLA Release

Posted on by Jeff Carnahan

While “release” is a common word used frequently in the English language, it has a varied and convoluted definition when it comes to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), which governs liability for cleaning up hazardous waste. 42 U.S.C. Section 9601 (22) defines “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” Historically, the term “release” has only dealt with liquids and solids being dumped on land or getting into rivers and streams, but Pakootas v. Teck Cominco Metals, Ltd., currently pending in the U.S. Court of Appeals for the 9th Circuit, could give rise to air emissions being included as a source of CERCLA liability.

The Ninth Circuit previously held in Center for Community Action and Environmental Justice et al. v. BNSF Railways; Union Pacific Railroad Company 764 F3d 1019 (2014) that particulate emissions from diesel engines did not constitute a release under the Resource Conservation and Recovery Act (“RCRA”) as the RCRA definition of “disposal” does not include the word “emitting.” While CERCLA’s definition of “release” includes emissions, it takes its definition of “disposal” directly from RCRA – a fact that Teck is arguing is pivotal in determining whether the hazardous particulate matter it emitted, which later fell to the ground, gave rise to CERCLA liability.

However, the plaintiff/appellees and the federal government argue that regardless of the absence of the word “emitting” in RCRA’s definition of disposal, the emission of hazardous waste into the air where it later settles and impacts human health and the environment is a type of disposal and to rule otherwise “would negate disposal in countless cases [and] put polluters beyond [Superfund’s] reach.”

Although the Ninth Circuit ruled against defining particulate matter from diesel exhaust as a matter of RCRA disposal, there are several routes it could take to distinguish Pakootas from Center for Community Action, not least of all the exclusion of petroleum as a hazardous waste under RCRA as a distinguishing factor between hazardous particulates that are leaving Teck’s facility and those leaving diesel engines – if RCRA can separate petroleum out from other hazardous materials, it is hard to see how the Ninth Circuit could not do the same in interpreting CERCLA.

In the event that the Ninth Circuit does find for Pakootus, industry could find itself facing increased scrutiny and liability for emissions, as well as a greater need to file Part A RCRA notices regarding characteristic hazardous waste air emissions.

About the Author:

GiffordJustin

Justin Gifford, Esq. 
General Counsel, Compliance Manager
866.888.7911
jgifford@enviroforensics.com

 

Justin Gifford is a licensed Attorney and permitting expert with additional experience in the technical side of EnviroForensics.  Mr. Gifford functions as EnviroForensics’ chief legal officer and has expertise in corporate contracts and structure, labor and employment, land use and permitting as well as practical experience in permitting with federal, state and local agencies. He is well versed in researching, locating and interpreting regulatory requirements and bringing those to bear in assisting EnviroForensics and its subsidiaries in complying with those rules whether through permitting activity or compliance auditing.  Mr. Gifford additionally works with exterior clients on a consulting basis to achieve regulatory compliance and be aware of upcoming regulatory changes, including those found under RCRA, CERCLA, TSCA, the CWA and the CAA.

As General Counsel for EnviroForensics, Mr. Gifford is responsible for evaluating, developing and implementing company policy, addressing corporate filing & reporting requirements and providing other legal services as necessary.

As a scientist, Mr. Gifford has conducted remediation projects ranging in size from retail gas stations and dry cleaners to large-scale municipal properties and industrial sites and has experience working within voluntary and enforcement cleanup programs operated by various State agencies and the U.S. EPA. Mr. Gifford is responsible for obtaining site access from properties adjacent to client properties and attaining permission to operate in municipal rights of way and has experience in collecting and interpreting soil, groundwater and gas data.

How Not to Fail to Find Your Company’s Old Insurance to Defend Against Environmental Property Damage Claims

Posted on by Jeff Carnahan

Yours is a middle-sized manufacturing company headquartered in the Midwest. Last year, the bank handling your company’s refinancing required that you conduct a Phase One environmental assessment. The Phase One report showed that past use of degreasers had contaminated the soil and possibly the groundwater beneath your plant. As required by law, you reported the findings to your state’s environmental authority. The state then sent a letter requiring that your company take action to determine the extent to which groundwater or adjoining land may have been polluted. Your attorney explained that your company’s general liability insurance policies from years past could provide coverage for the cost of responding to the state’s directives. So he asked you to provide him with copies of any and all general liability insurance policies in your company’s possession.

Your risk manager pulled together your policies from the last seven years and your attorney reviewed them. He then requested that you provide earlier policies because the policies you gave him have language that absolutely excludes pollution. Your risk manager informed you that those were all the insurance records he had in his files.  He then placed a call to your company’s current insurance agent who surprised everyone by saying that his agency has purged its files of policies older than seven years.

Stating that those insurance companies that issued your seven recent policies are likely the same ones that issued policies in the preceding years, your attorney wrote letters to each of them, placing them on notice of the potential property damage. Each of these carriers has now responded negatively, stating their policies do not cover and they can find no earlier policies issued to your company.  Now what?

INSURANCE ARCHEOLOGY

Your attorney’s latest suggestion is an odd one. Professionals that conduct searches for lost insurance policies, known as insurance archeologists, could expand the search beyond your risk management files and beyond your insurance agent in search of older policies.  Aware that hiring specialists may be expensive, you ask him to determine the cost of hiring an insurance archeologist and the likelihood that this new search for policies would be effective.

It turns out that most insurance archeologists are situated in large cities on the East Coast where they service America’s largest corporations by searching through the archives of the large insurance brokers.  Could they send someone out to your neck of the woods you wonder?  And how effective would they be in the Midwest?  After all, your company did not purchase its insurance from the large insurance brokers in New York.

Well fortunately, there are some insurance archeologists headquartered nearby. These work primarily for mid-sized Midwestern firms like your own. And their services are reasonably priced. They are acquainted with insurance agencies in the Midwest and would not require an expensive travel budget to visit them.  What is more, they routinely work for mid-sized manufacturers like yours and they have success rates in the 70% range. You have checked them out and have selected one but he wants to begin by coming to your place of business and reviewing your records. Wouldn’t this be a waste of money?  After all, your risk manager and your attorney have already pulled your policies together. No, actually not to allow the insurance archeologist to begin at the beginning would be a waste of money. Because insurance archeologists search for missing policies every day, they recognize evidence of insurance that the untrained eye might not recognize. They are not just looking for policies but parts of policies, such as endorsements or declarations; and searching for accounting records such as audits, premium notices, cancelled checks, etc. that might identify insurance.

Why wouldn’t you spend a few thousand dollars on an effort to retrieve old insurance policies that could net you several hundred thousand dollars in defense and indemnity costs? Hiring a Midwestern-based insurance archeologist will be the optimum way to approach this problem.  The proofs of insurance they provide your attorney will be the start of a process that ultimately settles this matter and allows you to move on to focus on running your business.

This blog post was originally posted on the PolicyFind website, located here.

About the Author:

DaveOneill
David A. O’Neill, J.D.
Director of Investigations, PolicyFind

 

David A. O’Neill is the Director of Investigations for PolicyFind, the Insurance Archeology division of Environmental Forensic Investigations, Inc., where he has been locating proofs of lost and misplaced historical liability insurance policies for clients since 2003. Mr. O’Neill holds a law degree from Case Western Reserve University and has been engaged in insurance archeological investigation since 1993.

At PolicyFind, Mr. O’Neill has primarily worked on behalf of businesses in search of a defense to state environmental authority property damage enforcement actions. In this regard he has specialized in the location and retrieval of lost general liability policies for dry cleaners. Also, his activities have included finding lost product liability insurance policies for building supply companies defending against asbestos and silica exposure claims. Mr. O’Neill has also worked on projects managed by insurance company claims specialists seeking policies issued by other carriers in efforts to spread the risk in environmental or asbestos related claims defenses. Further, on occasion PolicyFind’s clients have included churches and school boards seeking to locate policies to provide defense against long-tail claims of sexual battery by teachers and clergy. He has served as an expert witness for policyholders engaged in litigation with their insurers.

As the Insurance Research Manager for Risk International Services, Inc. from 1993 to 1998, Mr. O’Neill’s primary responsibility was to locate proofs of insurance for a nationally known waste hauling corporation engaged in an effort to settle its claims and sell its policies back to insurers prior to a sale of its assets. This was an insurance archeology effort that spanned five years and focused on the retrieval of insurance policies issued to nearly 2000 acquisitions.

Mr. O’Neill previously spent several years investigating property damage claims for the insurers of major U.S. Corporations named as responsible parties at hazardous waste sites throughout the Midwest. Earlier, he conducted Potentially Responsible Party Searches as a subcontractor for United States Environmental Agency Regions V and VIII.

Mr. O’Neill is a member of the Insurance Library of Boston.