Author: Jeff Carnahan

The Steps You Should Take if Environmental Investigation and Remediation are Inevitable

Posted on by Jeff Carnahan

For nearly 20 years, EnviroForensics has been one of the industry’s leading environmental engineering firms. In that time, we’ve often seen how our clients can feel worried, and perhaps even overwhelmed, when environmental investigation and remediation becomes necessary.  They ask us:

  •  What does remediation mean for our business?
  •  What are our legal concerns?
  •  How will we pay for all of this?

The regulatory process of cleaning up contamination can be daunting and scary if you find yourself in need of responding to environmental problems. Fortunately, we’re on your side to help make the process go as smoothly as possible. Here’s where you need to begin:

1)      Be Proactive – If you suspect remediation is required, maintaining as much control of the process as you can is in your best interest. Start by gathering as much historical insurance and business documentation as possible, so you’re prepared as the situation unfolds. As we’ve noted before, if environmental contamination is discovered and you are named a Potentially Responsible Party (PRP) you’re on the clock to solve the problem, and the regulatory agency doesn’t give much thought to your ability to pay for testing, legal expenses, and cleanup. Being proactive allows you to guide the process and strategically incorporate the option of funding by way of old insurance policies.

2)      Research Your Insurance – The best option for dry cleaners dealing with the potential costs of environmental remediation is to find old comprehensive general liability (CGL) insurance policies. Prior to 1985, many insurance companies did not include language in their policies for absolute pollution exclusion. If CGL policies were purchased before the language changed to exclude environmental contamination, you may be able to use those policies to cover your expenses. Environmental cleanups can cost hundreds of thousands of dollars and take a long time to complete. Investing the upfront time to research your insurance can help your business avoid drastic financial implications.

3)      Seek Help – Hoping a problem will just go away is fruitless. If you choose to ignore environmental issues, the result may be catastrophic financial or even legal consequences. When you’re unsure of the status of old insurance policies, you can get help from an insurance archaeologist such as PolicyFind. You may not know where to find old policies or policies purchased by previous owners of the business, but an insurance archaeologist may have success. Found policies can often cover the costs of legal fees and fund the environmental investigation and remediation necessary to improve the condition of the affected land so it meets regulatory requirements.

PolicyFind, which is owned by EnviroForensics, has a high success rate of finding evidence of old policies. If an old policy is uncovered, you want insurance experts on your side that understand the right way to apply your rights to ensure that you benefit from the documentation. Hundreds of thousands of dollars are potentially on the line – getting help from an expert is imperative.

Are you concerned your business needs remediation? Stay in control by following these steps. Contact us today to learn more.

When Environmental Cleanup is Good Community Relations

Posted on by Jeff Carnahan

Faced with the possibility that decades-old dry cleaning solvent may have polluted ground under its original dry cleaning plant in Jeffersonville, Indiana, family-owned dry cleaning business Nu Yale Cleaners contracted EnviroForensics to investigate. Together, the two companies are proactively taking action for a safer, cleaner environment by removing perchloroethylene (PCE contamination), a dry-cleaning solvent they no longer use. And Nu Yale is happy to talk about it.

The Positive Side of Things

Believe it or not, even with all of the scariness and seriousness, cleaning up environmental contamination can be good community relations.  The key is understanding that there is a positive light to cleaning up environmental contamination and that it doesn’t have to hurt your reputation. Continue reading “When Environmental Cleanup is Good Community Relations”

The Simple Science and Economics of Cleaning up Subsurface Pollution

Posted on by Jeff Carnahan

The fundamental, hard-fast goals of a subsurface remediation project are to stop any current human or ecological exposure; and to avoid any potential future human or ecological exposure. Here are some of the basic concepts and economic considerations used to determine effective site cleanup strategies to attain regulatory closure at contaminated sites.

There are essentially three ways to achieve remediation project objectives:

  1. Physically remove the contamination
    1. Soil Excavation
    2. Soil Vapor Extraction
    3. Groundwater Extraction
    4. Electrothermal Heating
  2. Chemically, or biochemically destroy, or immobilize the contamination in place
    1. Chemical Oxidation, Permanganate, Persulfate, Ozone
    2. Chemical Reduction, Zero-Valent Iron, Enhanced biotic reduction
    3. Bioattenuation (microbes)
    4. Soil Stabilization
  3. Eliminate the potential for exposure to occur by use of either Engineered or Institutional Controls
    1. Impermeable Cap
    2. Big Fence
    3. Long-Term Vapor Mitigation Systems
    4. Control Land Use Activities through Deed Restrictions
    5. Ordinances to disallow use of groundwater resources

Small subsurface releases of contamination can be completely cleaned up by direct removal techniques, such as excavating the entire area, but larger releases where soil, groundwater and vapor phase impacts are present are much more difficult to remediate.  It is common that a complete remediation is not technically feasible, or financially possible, as the amount of money available is always finite.

As such, the long-term monitoring of Engineered or Institutional Controls is nearly always a component of remedial planning.  This is necessary to ensure that it doesn’t cause exposure problems in the future.  This monitoring is known as Long-Term Stewardship, and it can greatly impact not only the overall costs of addressing contaminated sites, but also the type of remedy selected. The duration and necessary intensity of Long-Term Stewardship activities is determined by balancing the cost of active remediation activities with the costs associated with the monitoring of exposure conditions into the future.

Understanding that the first course of business in performing an environmental cleanup is the elimination of current human or ecological exposure, then doing what work can be afforded to improve site conditions, while following that up with monitoring to make sure that future exposure concerns will be avoided. Many times, the cost of more active remediation and less long-term monitoring makes the most sense economically. It definitely does from a perspective of reducing the total amount of harmful hazardous wastes in the natural environment.

About the author:
mainjeffEnvironmental Expert

Jeff Carnahan, L.P.G.
866-888-7911
jcarnahan@enviroforensics.com

 Jeffrey Carnahan is a Vice President and the Director of Technical Services at EnviroForensics, Mr. Carnahan holds a M.S. in Geology and is a Licensed Professional Geologist (LPG) with 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.  In his role as Director of Technical Services, Mr. Carnahan leads, supports and encourages the entire EnviroForensics team of experts as they guide their clients through the process of turning environmental liabilities to assets.

EnviroForensics® is an environmental engineering firm specializing in soil and groundwater investigation and remediation and vapor intrusion assessment and mitigation. EnviroForensics has all have the tools available to us to perform the highest caliber science in the market today, which allows designing and implementing clever, innovative and effective solutions to PCE and TCE contamination. EnviroForensics® has pioneered and perfected the utilization of Commercial General Liability insurance policies as a resource to pay for the high costs associated with soil and groundwater investigations, remediations, and legal defense. 

What Triggers an Environmental Investigation?

Posted on by Jeff Carnahan

Dry cleaners often live in a state of fear. Harsh chemicals used by these businesses can permeate the ground nearby, resulting in environmental problems that may lead to costly cleanup or litigation. Many business owners are in the dark when it comes to understanding what triggers an environmental investigation. For some, the best option is to simply look the other way.

What triggers an environmental investigation?

The most common triggering event is a requirement by a bank lending on the property. The property owner may want to refinance the property, or a prospective buyer of the property wants to obtain financing.

Other issues that can trigger environmental investigations include:

·         Contamination being discovered  in municipal or private drinking water wells

·         Contamination being discovered beneath neighboring or down gradient properties

·         Regional investigations conducted under the direction of state or federal regulatory agencies

How does this process begin?

When a bank evaluates whether or not to lend on a commercial property, they will require a Phase I Environmental Site Assessment (ESA). The Phase I ESA is a due diligence evaluation of the property to identify potential or existing environmental contamination liabilities. A Phase I ESA is conducted under guidelines established by ASTM International, an organization of engineers, scientists, and policymakers that set technical standards.

The consultant conducting the Phase I ESA will inspect the site for signs of staining, evidence of spills, stressed vegetation, determination of underground and above ground tanks, secondary containment, violations, and operating practices. They will evaluate records at the fire department, local health department, state environmental agencies, and federal EPA to determine whether fires or chemical spills were reported on the subject property or on neighboring properties. This review would also evaluate what businesses are operating in the vicinity that could cause environmental impacts that may impact the subject site.  The past operation of certain types of businesses, including dry cleaners, automatically increases the chance that further ground testing will be required prior to lending.

New guidance passed in 2013 puts greater emphasis on assessing the potential impacts from vapor intrusion and vapor migration on the property. The definition of an environmental concern within the guidance has been changed to include contamination in the subsurface vapor phase, in addition to the soil and groundwater.

The net result of this new guidance will be an increased focus on dry cleaners that used perchloroethylene (PERC).

What happens after the Phase I ESA?

Should the Phase I ESA identify a reasonable potential that soil and groundwater may be impacted, the consultant will suggest conducting a Phase II ESA. A Phase II ESA includes collection of subsurface samples to determine whether the property has been impacted with chemicals that pose a risk to human health or the environment.

What does this mean?

PERC is a common dry cleaning solvent, which is why focus is placed on dry cleaners. When PERC is found in the groundwater, the situation escalates rapidly.

The State of California, for example, found levels of PERC in municipal drinking water wells and immediately sought to identify all dry cleaners that operated within a mile radius of the well for the previous 50 years.  By using historical records, the address, name, and period of time a dry cleaner operated at a location can be identified.

If PERC, or any other contaminant is found in soil or groundwater during a Phase II ESA, the release is required to be reported to the state environmental agency.  Subsequent investigations and, ultimately, remediation activities, are then required to be performed with oversight by the agency.

The term “release” will now also include identified impacts in the vapor phase (i.e. soil gas). The need to assess the subsurface vapor phase (soil gas phase) will likely result in increased sampling, which could lead to an increase in dry cleaner sites identified as potentially having releases from their operations.

What can you do?

All dry cleaners must understand how investigations are triggered and what to expect after, which is why locating the old commercial general liability (CGL) insurance policies is vital. Old CGL policies written before 1985 or 1986 don’t include absolute pollution exclusion language and can be used to defend the insured against contamination claims.

EnviroForensics is highly regarded for our expertise in chlorinated solvent contamination and vapor intrusion (VI) issues. If VI is a concern for your property, we encourage you to learn more.

To find out additional information about environmental remediation triggers and steps you can take to protect your business, contact us today.

EnviroForensics® is an environmental engineering firm specializing in soil and groundwater investigation and remediation and vapor intrusion assessment and mitigation. EnviroForensics® has all the tools available to us to perform the highest caliber science in the market today, which allows designing and implementing knowledgeable, innovative and effective solutions to PCE and TCE contamination. EnviroForensics® has pioneered and perfected the utilization of Commercial General Liability insurance policies as a resource to pay for the high costs associated with soil and groundwater investigations, remediation, and legal defense. 

Using Historical Insurance to Cover Investigation and Cleanup Costs

Posted on by Jeff Carnahan

by: Steve Henshaw, CEO of EnviroForensics & PolicyFind

As seen in Cleaner & Launderer
Clothes hanging in dry cleaning warehouse
Underground contamination can be a problem at a dry cleaning site that used chlorinated solvents in the past, but it this doesn’t have to be something that ruins a business owner’s savings or reputation.

More often than not, environmental contamination and historical operations of a dry cleaning business go hand in hand. While this may sound unfair, one could say the same thing about the historical operations of a gas station, a metal plater, and even a computer microchip manufacturer. This was particularly true for activities in the 1970’s and 1980’s. Industries that used chemicals for cleaning and degreasing were not aware that when those chemicals spilled, even accidentally and in small quantities, they could (and often) have led to soil and groundwater contamination.

Why are degreasing chemicals harmful?

Degreasing chemicals fall under a general organic chemistry category called chlorinated hydrocarbons or chlorinated solvents. These chemicals are characterized as being heavier than water (meaning they sink into the groundwater), persistent in the environment (meaning they don’t decompose very fast), volatile (meaning they prefer being in the gas phase over the liquid phase) and carcinogenic (meaning they have been determined to either cause cancer or may likely cause cancer at certain exposure levels). No matter which side of the argument you stand on, whether cleaning solvents cause cancer or not, one thing everyone should agree on is that investigating and remediating chlorinated solvent sites with Perchloroethylene (PERC) or Trichloroethylene (TCE) is very expensive.

Who’s responsible for the clean up?

With respect to responsibility, any person or company that owned or operated a business where chlorinated solvents were used should know that with very few exceptions, they are legally liable for contamination associated with that business and operation. Worse yet, the law states that an individual or the business is held jointly and severally responsible. Finally, like taxes, environmental liability is considered a long-tail liability in that it never goes away.
On the face of it, what I’ve presented seems so unfair. After all, chlorinated solvents were considered to be safe and state of the art since they were not explosive or flammable like petroleum based products (e.g. kerosene or Stoddard solvent). People were handling the solvents in accordance with the laws of the time some 50 years ago and now they are considered an environmental risk subject to legal enforcement. Businesses that operated with good housekeeping practices and followed the rules are subject to be in the same category as a business that showed blatant disregard for the laws or the environment and operated a business with intentional pollution. In addition, a business that operated only for one year is just as liable for the environmental contamination as a business that operated for 20 years. Who makes this stuff up? It most certainly is not fair. Enough of the doom and gloom though.

“Absolute Pollution Exclusion”

After ~1985, most insurance companies added very specific language to CGL policies that contained absolute pollution exclusion. In other words, they were not covering individuals and businesses for pollution or contamination associated with dry cleaning operations. A separate environmental policy would be required to cover environmental pollution and contamination. Better yet, the courts in some states have ruled that the term “pollution” and therefore “pollution exclusion” is an ambiguous term due to the way insurance policies were written, even after the nationwide changes that took place in ~1985.

Consider these two examples:

  1. If an accident happened while you were filling your car’s gas tank at that gas station and you or someone you were with was injured, then you would expect the gas station’s insurance to cover any injuries.
  2. Yet, if the gasoline from a gas station drained into the ground and caused contamination to drinking water, this situation would not be covered by insurance because the gasoline is now considered a contaminant. I think this logic was in play when courts of some states ruled that the word “contamination” was ambiguous.

So, if you or your business bought CGL insurance before the policies contained absolute pollution exclusion language, you are likely to have insurance coverage that can address environmental contamination, even if that contamination has only been recently discovered. In addition, if you acquired the business, the business before you may have insurance that would cover environmental contamination costs.

You might say, “That’s all great, but what if I can’t find my old policies or the policies that were bought by former owners?”. In my experience, more times than not, those old policies (or evidence of insurance) can still be found. There are companies, like PolicyFind™, with investigators called insurance archeologists that focus on finding old policies or evidence of old policies. In my experience, more often than not, a good insurance archeologist can find evidence of old insurance.

Let’s say you found old insurance. Now what? Insurance is designed to defend and indemnify a policyholder against a claim. The claim is the demand from the regulatory agency or third party requiring action to mitigate the damage or harm. In some states, a claim or suit could be a letter from the regulatory agency or a neighboring property owner demanding a response to identified environmental contamination. In other states, the courts have determined that the insurers must only defend an actual lawsuit.

insurance archeologist looking through files
A consultation from an experienced insurance archeologist can uncover millions of dollars in usable assets to pay for environmental cleanup and legal fees.

In pulling this concept together, a defense would include paying for lawyers dealing with the environmental contamination. A defense would also include quantifying an individual or business’s environmental exposure and liability. The only way to quantify environmental liability is to collect environmental samples (e.g. soil, soil gas, indoor vapor, and groundwater). It would also mean determining how expensive a cleanup would be, which means that aquifer tests, feasibility studies, and remediation technology evaluations, should be covered.

Obviously, the process of using old insurance policies has many parts and can include an insurance archeology component, a legal component, and a technical component. All three parts have to work together to get the business back in good standing. Understanding all aspects of the process is not your job, that’s why you hire experts like EnviroForensics® and PolicyFind™ to take care of the process for you.

If you’re facing an environmental liability of hundreds of thousands of dollars, you should look into historical insurance policies and see how they could work for you and your situation. We have worked with hundreds of business owners who have used historical insurance to help pay for environmental investigations and remediation. Depending on the set of facts, known environmental insurance claims can be sold and assigned to other third parties to manage and run. Small businesses, including their stock, insurance assets and liabilities can be bought and sold. There are numerous permutations to the business side of managing environmental claims and a whole new industry is in front of us. It might be encouraging to know that there are companies out there still fighting the good fight.

Contact us today by filling out our Dry Cleaner Form

With over 30 years of experience, Steve Henshaw, PG has a wide range of experience in the environmental remediation field. As CEO of EnviroForensics, Henshaw serves as a client and technical manager on projects associated with site characterization, remedial design, remedial implementation and operation, litigation support and insurance coverage matters. These projects have included landfills, solvent and petroleum refineries, metal plating shops, food processors, chemical manufacturers and distributors, heavy equipment manufacturers, and transporters. Henshaw’s expertise includes knowledge of industry practices and procedures, and an extensive understanding of contaminants in soil and groundwater. He has also served as a testifying expert on behalf of individual landowners and facility operators at several Brownfields sites impacted by industrial activities.

Henshaw is passionate about access to clean water in developing countries and co-found a 501(c)(3) nonprofit called Water For Empowerment in 2015. The organization’s current project empowers women and girls in rural Nicaragua to create healthy futures through clean water initiatives.

The Accidental Environmental Steward

Posted on by Jeff Carnahan

Most people who reside in industrialized countries are well aware that our collective, historical pursuit of a higher standard of living has created an environmental pollution problem that threatens the very lives we originally intended to enrich.  Ironically, our successes in these endeavors have also allowed for advances in science and medicine, which have revealed the harms of the pollution.  I’ve worked in the environmental investigation and remediation industry for nearly two decades now; this business has been wrought by such irony.

In many cases, those legally responsible for environmental contamination were innocent of malicious intent when the release occurred.  They were only guilty of not knowing that the chemicals or processes they employed during their daily pursuit of making a living were causing environmental damage, and even direct risks to human health.  If I’ve heard the story once, I’ve heard it a hundred times; “We were just doing things as everyone else did them back then…we had no idea that our business operations were harming the environment, and for goodness sake, we would never have done anything to hurt anyone on purpose.”  Small business operators and large manufacturing facility employees alike have often expressed this sentiment when alerted to the resulting harm, and at times, their realization has led to real tears of shame and remorse.  Yesterday these folks were going about their businesses and their lives without the knowledge that they may be facing huge, potentially insurmountable legal and financial burdens.  Today they are responsible for setting things right.  It’s tempting to demonize “polluters” in our current society, especially given the intentional bad environmental decisions made by some.  I choose to believe; however, that the merit of actions taken by those responsible after they learn of causing contamination is truly the article to be judged.

With the advent of environmental regulations in the late 20th Century, the United States established by law a system for controlling hazardous waste from the time it is generated until its ultimate disposal, known as the “cradle to grave” scenario.  A chain of legal responsibility resulted, which linked the person or entity that caused pollution to the current owner of the pollution, or the real estate within which the hazardous waste (i.e. pollution) resides.  These regulatory activities were performed in the pursuit of assigning financial responsibility for conducting cleanup to stop unacceptable human and ecological exposure to toxic materials.  Those persons or entities who are presently at the front of the succession of liability line are referred to as the responsible parties, or RPs.

Responsible Parties can be billion dollar corporations, small businesses, retirees, or even national governments (i.e. military bases, energy research facilities).  In some cases, the entity that created the hazardous waste is still operating and able to take control of their duty to manage or dispose of it properly.  In other scenarios, the generator of the waste is no longer in business or has moved on to different locations without the knowledge that hazardous waste they created had been released into the subsurface.  In the latter scenario, the liability to manage the contamination may have been accidently inherited by the unwitting purchaser of the property that was polluted by someone else’s hazardous waste.

Once environmental contamination and a RP has been identified by a governmental environmental agency, or an affected third-party, they will most likely enforce the existing laws, or file a lawsuit, and require that the RP investigate and clean up the mess.  This is typically regardless of whether the legally responsible entity caused the contamination or not.  Assuming that the RP has the financial means to take care of the problem, they will set forth their efforts at removing the pollution to the extent possible.  Even with our great advances in science and engineering, the full extraction or destruction of every molecule of hazardous waste that may be in contaminated soils, rock and groundwater is simply not practical.  Environmental regulators, attorneys and scientists understand that this limitation exists; and therefore, the success of cleanup projects is most often measured by the ability to eliminate adverse human health effects of exposure to the remaining residual hazardous waste.  Contaminated properties are many times closed with a commitment by the RP to monitor future land usage at the contaminated property and ensure that no one becomes exposed.  The regulating agencies have termed this process, “Long-Term Stewardship,” or LTS.

The legal and financial practicality of conducting and regulating the seemingly endless process of LTS is being fiercely debated in Washington D.C. at present; as the White House Office of Management and Budget (OMB) evaluates the final draft of EPA’s Vapor Intrusion Guidance, which contains the latest rendition of LTS requirements.  Federally led environmental cleanup programs under CERCLA (Superfund) and RCRA have had LTS requirements for decades.  These programs have been used as the basis for the new LTS requirements that are also likely to be applied through state led programs.

It is logical to presume that those responsible for environmental releases should also be those upon whom we all rely on to make pollution problems right.  Individuals whose health has been harmed, or whose property has been impacted by environmental releases from others certainly have a right to seek answers and restitution from the responsible parties.  Society as a whole has benefitted from the production of goods that resulted in contamination as a consequence.  It may be appropriate; therefore, to keep sight of intent when considering the punitive component of damages sought.  We all expect, and need responsible parties to use their financial assets to pay for the investigation and cleanup of the mess that they or their corporate predecessors created.  With new LTS requirements, they will also be our environmental stewards, keeping an eye on residual contamination and exposure into the future for generations to come.

 

About the author:
mainjeffEnvironmental Expert

Jeff Carnahan, L.P.G.
866-888-7911
jcarnahan@enviroforensics.com

Jeffrey Carnahan is a Vice President and the Director of Technical Services at EnviroForensics, Mr. Carnahan holds a M.S. in Geology and is a Licensed Professional Geologist (LPG) with 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.  In his role as Director of Technical Services, Mr. Carnahan leads, supports and encourages the entire EnviroForensics team of experts as they guide their clients through the process of turning environmental liabilities to assets.

EnviroForensics is an environmental engineering firm specializing in soil and groundwater investigation and remediation and vapor intrusion assessment and mitigation. EnviroForensics has all have the tools available to us to perform the highest caliber science in the market today, which allows designing and implementing clever, innovative and effective solutions to PCE and TCE contamination. EnviroForensics® has pioneered and perfected the utilization of Comprehensive General Liability insurance policies as a resource to pay for the high costs associated with soil and groundwater investigations, remediations, and legal defense. 

Advances in Vapor Intrusion Science could result in More Cleanup and Liability after Superfund Five-Year Reviews

Posted on by Jeff Carnahan

A December 2014 press release by the U.S. EPA announced 22 previously cleaned Superfund sites that will soon be undergoing a five-year review process.  These sites are among the first that could see significant additional work required due to recent developments in the vapor intrusion field of study.  Five-year reviews are required by law at Superfund sites, and are intended to ensure that previously performed cleanup activities continue to protect public health and the environment when hazardous substances are left in place.  The review process includes an evaluation of the ongoing efficiency of engineered controls, such as landfill caps and vapor intrusion mitigation systems, and the continued effectiveness of institutional controls, such as land-use restrictions, which may have been emplaced as part of the environmental remedy.  Existing site conditions are also reconsidered in light of any advances in contaminant fate and transport science, toxicology or public health epidemiology that could impact the conclusions of exposure risk assessments conducted earlier.

Key scientific toxicological and regulatory developments in the fields of vapor intrusion could have a significant impact on the announced group of sites, and all future sites to undergo the five-year review process.  The EPA has recognized that at sites where exposure assessments were performed and remedial decisions were made over five years ago, the potential for vapor intrusion to be occurring may not have been addressed.  In the Office of Solid Waste and Emergency Response (OSWER) Directive 9200.2-84, Assessing Protectiveness at Sites for Vapor Intrusion Supplement to the “Comprehensive Five-Year Review Guidance,” it is stated that, “It is possible that the vapor intrusion pathway was not considered at the time site-related decision documents were issued or that new site information (discovered since the decision documents were issued) suggests that vapor intrusion is now a potential pathway of concern at a site.”  The document also states that if the vapor intrusion exposure pathway was not evaluated, or adequately evaluated, during remedial planning, “…the five-year review document can make recommendations for gathering appropriate data relevant to vapor intrusion.”

Conservative and controversial new toxicological information accepted by the EPA could vastly affect the results of five-year reviews at Superfund sites where the hazardous substances trichloroethene (TCE) remains in the subsurface.  In a July 9, 2014 a technical memorandum was issued by Region 9 of the EPA which stated, “Addressing vapor intrusion at our Superfund sites is one of the top priorities for the Superfund Division.”  For identified inhalation exposure to TCE, the memorandum states that the exposure must be immediately halted if breathing air contains the compound at concentrations as low as 2 micrograms per cubic meter (µg/m3).  Accelerated response actions are expected when concentrations are identified at 6 µg/m3 or above.  These expectations have been implemented in Region 9, and have been widely adopted by Superfund personnel in other EPA Regions.

Future five-year reviews performed at Superfund sites could result in requirements to open an entirely new phase of investigation related to vapor intrusion.  If any unacceptable vapor intrusion risks are identified as a result, then additional cleanup activities are also likely.  Those who are legally and financially responsible for the site may find themselves in the midst of a high-profile public health concern if it is found that the inhalation of TCE is occurring.  While it’s not probable that Superfund sites will be reassessed in advance of their five-year review schedule, it may be prudent for responsible parties to have their vapor intrusion experts look at the situation now.

About the author:
mainjeffEnvironmental Expert

Jeff Carnahan, L.P.G.
866-888-7911
jcarnahan@enviroforensics.com

Jeffrey Carnahan is a Vice President and the Director of Technical Services at EnviroForensics, Mr. Carnahan holds a M.S. in Geology and is a Licensed Professional Geologist (LPG) with 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 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.  In his role as Director of Technical Services, Mr. Carnahan leads, supports and encourages the entire EnviroForensics team of experts as they guide their clients through the process of turning environmental liabilities to assets.

EnviroForensics® is an environmental engineering firm specializing in soil and groundwater investigation and remediation and vapor intrusion assessment and mitigation. EnviroForensics has all of the tools available to us to perform the highest caliber science in the market today, which allows designing and implementing creative, innovative and effective solutions to PCE and TCE contamination. EnviroForensics® has pioneered and perfected the utilization of Comprehensive General Liability insurance policies as a resource to pay for the high costs associated with soil and groundwater investigations, remediations, and legal defense. 

Long-term Stewardship of Contaminated Sites, Vapor Intrusion Mitigation and Monitoring Fit the Requirements

Posted on by Jeff Carnahan

Written by Stephen R. Henshaw, President & CEO, EnviroForensics

As seen in the December 2014 issue of Cleaner & Launderer

PDF Version

The latest wrinkle in the cleanup process of sites contaminated with chlorinated solvents (PCE and TCE) is in understanding how long the site, and those sites downgradient, will need to be monitored when complete contaminant removal is not possible and potential human exposure remains. Generally speaking, the more contamination left in place, the longer the site will need to be monitored. I want to tell you this because the cleanup costs that will be generated for your site, will be greatly affected by two things; 1) the removal of contaminated soil and groundwater in the source area and 2) the long-term monitoring requirements (how many locations need to be monitored and for how long). If you are not aware of these two big issues, you are not looking at the full picture and you could be unwittingly reviewing cleanup cost estimates that may have been prepared using the old “bait and switch”.

Let me make no bones about it, the environmental consulting industry is highly competitive and like many purchases consumers make, price is a large factor when you select a consultant to clean up environmental contamination. Nowhere is this price more susceptible to variation than in asking for the consultant to give a true site closure cost estimate. The most important thing to understand about what I am telling you is that you know to ask the hard questions about the provided cost to closure and don’t get caught up in hearing what you want to hear. Consultants don’t enjoy being the bearer of bad news and they realize that they might be competitively shopped, especially if the provided costs are higher than the party paying for the contamination expects. Consequently, the consultant may try to soft pedal the remediation costs. I refer to this as, “telling people what they want to hear”. I see this all the time, particularly when insurance companies are responsible for paying for the cleanup. Continue reading “Long-term Stewardship of Contaminated Sites, Vapor Intrusion Mitigation and Monitoring Fit the Requirements”

HOW CLEAN IS CLEAN MAY DEPEND ON HOW CLEAN YOU NEED IT TO BE

Posted on by Jeff Carnahan

Written by Stephen R. Henshaw, President & CEO, EnviroForensics

As seen in the November 2014 issue of Cleaner & Launderer

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“How clean is clean”, has been a phrase that has been debated for decades.  It is used in reference to determining the degree to which a site that is contaminated by chlorinated solvents such as PCE (Perc) and TCE, needs to be cleaned up and remediated before the site is deemed to be free of environmental encumbrances.   Commonly this clean up level is based on concurrence from the regulatory agency overseeing the site. When the regulatory agency determines that cleanup levels have been satisfactorily demonstrated, they will issue a No-Further-Action (or equivalent) letter.  But not all site closures are equal, nor in the best interest of the property owner.

I want to tell you this because obtaining site closure may not avail a property owner with property that can be marketed and utilized to its fullest value, even constricting future land uses.  I want to tell you this because most people are so afraid of the environmental contamination that their focus is on getting the site closed.  By putting the site closure focus ahead of the future value may leave a property owner with a long-term management problem and an under preforming asset.  If property owners do not think about the future land use and long-term monitoring requirements of a property, they could be restricted to use the property for a specific land use (e.g. industrial or commercial) by way of a deed restriction that is placed on the property for generations to come.  The property owner could be required to manage contamination left in place by having to ensure that the deed restriction is enforced. They could be required to maintain the operation and maintenance of a vapor mitigation system for as long as twenty to thirty years after site closure.  They might even find that a bank is not willing to lend on the property, restricting the use of the property as collateral for fear of future changes in the law or potential future third party personal injury or property value claims.

Continue reading “HOW CLEAN IS CLEAN MAY DEPEND ON HOW CLEAN YOU NEED IT TO BE”

Choosing an environmental consultant for your unique situation

Posted on by Jeff Carnahan

SAVE TIME AND MONEY BY HIRING THE RIGHT ENVIRONMENTAL CONSULTANT 

A variety of different hard hats that environmental consultants wear lined up in multiple rows

BY: STEPHEN R. HENSHAW

I recently changed real estate agents after he was unsuccessful in selling a unique piece of property. My house was nice, but not great. What this property did have was a fantastic view, but a buyer had to physically get up to the house to see it first. In the end, I felt that my original broker didn’t have the right ideas to sell my unique situation. This concept of needing that special expertise can apply to a small business owner hiring an environmental consultant.

THE  3 COMMON MISTAKES THAT SMALL BUSINESS OWNERS MAKE WHEN HIRING AN ENVIRONMENTAL CONSULTANT

There is arguably no bigger issue for a small business owner to deal with than the issue of environmental contamination and liability. Businesses and savings have been lost because the environmental contamination and liability were so expensive. That being said, choosing the right environmental consultant is an extremely important decision. But as important as this decision is, more times than not, a small business owner selects an environmental consultant one of the following ways:

  1. The consultant is a referral from a friend or an associate; 
  2. The consultant was selected because he happened to be in close proximity; or
  3.  The consultant was perceived to be the least expensive.

In light of the importance of this decision, choosing an environmental consultant based on referrals, location and cost is an amateur’s approach. This article is intended to point out that selecting an environmental consultant should be one of the most important business decisions you are faced with and that there are important differences between consultants. Let’s face it, if a business owner doesn’t know that there are differences between environmental consultants, countless hours and dollars may be wasted, projects could drag on for years and site closure or settlement may not be achieved.

WHAT DOES AN ENVIRONMENTAL CONSULTANT DO?

Let’s first discuss what an environmental consultant does and the difference between the many disciplines of environmental work. Most consultants have areas of focus or specialty areas. Those might include: 

  1. Due diligence projects for banks on the property transaction and refinancing side 
  2. Cleaning up contaminated gasoline stations 
  3. Wetlands and endangered wildlife
  4. Permitting, compliance, and zoning 
  5. Remediation and site closure of sites contaminated by cleaning solvents and the vapor intrusion that accompanies those contaminated sites

A business owner needs to interview potential consultants to find out what their area of focus is. If your site involves the release of cleaning solvents like tetrachloroethylene (PCE or Perc) or trichloroethylene (TCE), you need to make sure that consultant has that experience and ask how many sites they have worked on, how many they have closed and how long the process took.

HOW MUCH DOES AN ENVIRONMENTAL CONSULTANT COST?

Now, let’s discuss the issue of cost. While it’s easy to get caught up on the labor rates being charged by a consultant, the bigger issue is always, how much out of pocket will this cost your business and over what period of time? Selecting the lowest cost is foolhardy and rarely works out in the end to your advantage. If you go out to bid, what are you looking at? If you start a phase of work, such as a work plan, the collection of soil or groundwater samples, the installation of monitoring wells, reporting, and the like, it is difficult to change plans. A low bid could end up being accompanied by numerous change orders, negating any savings anticipated. I’m not suggesting that business owners select the lowest bid, but I would not go to the cheapest dentist and you shouldn’t choose your environmental consultant on the cheapest basis either.

DOES YOUR ENVIRONMENTAL CONSULTANT HELP YOU FIND ALTERNATIVE FUNDING SOURCES?

Another question to ask is who will be paying for the investigation and cleanup? Are there any funding sources besides your business? Our firm specializes in finding alternative funding to pay for environmental liabilities. Because we specialize in the area of finding alternative funding sources, we always look for these opportunities. We may not always be able to find the funding, but we are successful more times than not and we always look for alternative funding sources.

Oftentimes, business owners have little interest in the science side of environmental liability, so ask the consultant for a road map of the process. Why are you being targeted? Are others contributing? What are the steps to resolve your liability? A consultant doesn’t have a crystal ball and cannot tell you precisely what they will find as the investigation proceeds, but they need to have a road map and a plan of action.

Discuss with the consultant what your financial resources are, because if you cannot afford to get to the end game, you may be better off not starting at all. I believe that business owners need to know what they are facing so they are not surprised. This means you might hear things you do not want to hear. I don’t advocate for bankruptcy, but I’ve seen business owners spend their life savings and then also go bankrupt.

DOES YOUR ENVIRONMENTAL CONSULTANT TREAT YOUR SITUATION WITH THE SERIOUSNESS IT DESERVES?

Selecting an environmental consultant may be the biggest decision for your business, so treat it very seriously. Select your consultant like you would select your doctor. You wouldn’t have a foot doctor working on your heart and you should not have a tank removal contractor working on a solvent spill. Here’s a quick checklist to go over with a potential consultant:

  1. Find out how many sites the consultant has worked on and how many they have closed. 
  2. Don’t choose a consultant on price alone and don’t choose a consultant because they tell you what you want to hear. 
  3. Be strong and ask tough questions about the investigation and remediation process. (see the link to example questionnaire below)
  4. Find out if there are alternative sources of funding other than just your business. If the consultant doesn’t have a clue as to what you are asking, run the other direction. 
  5. Understand why you are doing the work and whether you need the site closed to sell the property or the business. 
  6. Ask for a road map and plan of action. 
  7. Find out how committed they are to you. 
  8. Find out if they will work with you on a payment plan.
  9. Find out if they will conduct work for a lump sum. 
  10. Find out if they can work flexible hours to minimize business interruption.

Download our PDF of 12 questions you should ask an environmental consultant before hiring them

In the end, an environmental consultant works for you and they need to have all of your interests in mind and they need to fight for you as if you’re family. If your consultant is not working out like you believe that they should be, you can change consultants. There are plenty of good environmental consultants to work with, but there may be only a select few that are the right fit for your unique situation.

Contact us to learn more about how we can help you with your unique environmental situation

Stephen R. Henshaw, Founder
Entrepreneur and expert on environmental liability, Steve Henshaw has 30 years saving transactions by compelling carriers to cover legal cleanup costs for site owners. Henshaw holds professional geology registrations in numerous states. As the Founder of EnviroForensics, Henshaw has served as a client and technical manager on over 350 projects associated with site characterization, remedial design, remedial implementation and operation, litigation support and insurance coverage matters.

These projects include landfills, solvent and petroleum refineries, foundries, metal plating shops, food processors, wood treating facilities, chemical manufacturers and distributors, mines and quarries, heavy equipment manufacturers, computer manufacturers, and transporters. He has experience in a variety of geological settings including soft sediments, fractured bedrock, glacial outwash, wetlands, and landslides. Henshaw’s expertise includes a strong knowledge of past and current industry practices and procedures, and a hands-on, practical understanding of the fate and transport of contaminants in soil and groundwater. He has also served as a testifying expert on liability issues on behalf of individual landowners and facility operators at several sites impacted by industrial activities and continues to provide technical and litigation support services.