Frequently Asked Questions

 

In what geographical areas does OMNICON Environmental Management operate?  

 

We can provide services pretty much anywhere in the United States.  We've worked for clients all across the country, from Connecticut to California, Alabama to Alaska, and many places in between.  For much of what we do, the limiting factors are: 

  • our knowledge of any state- and/or local-specific regulations

  • our ability to find and access relevant local records and information

  • any special state licensing requirements

  • the cost to mobilize equipment

  • project-associated travel and per diem costs

Because of these limiting factors, the majority of our Phase 1 assessment work has been confined to Lane County, Oregon, and in adjoining areas of Linn, Benton, and Douglas Counties.  We have occasionally conducted assessments in or near Salem, Portland, and Medford.  We generally do not perform Phase 1 assessments outside of Oregon.

 

Are there any testimonials, client lists, or references available?   

 

Most organizations are not eager to advertise that they have a compliance, pollution, or contamination problem... it just doesn't fit into their branding or public relations strategy.  For this reason, we have always operated at a high level of discretion, even to the point of not having signage on our vehicles. 

 

All of the work that we do for our clients is confidential.  We therefore do not identify our clients, or discuss the details of any ongoing or past project, in our marketing materials. 

 

When am I required to report a spill that occurred on my property? 

 

If and when you are required to report a release depends upon a number of factors, including:

 

  • the type of hazardous material and its classification (e.g., hazardous substances vs. extremely hazardous substance

  • the quantity released (i.e., does it exceed a "Reportable Quantity" (RQ)

  • the specific law under which the material is regulated

Federal laws require that releases of most hazardous materials in amounts exceeding an RQ be reported immediately upon discovery.  In some cases (e.g., releases regulated under the Clean Water Act; releases from underground storage tanks), you may have up to 24 hours to make required reportings.  There are also a number of exceptions and exemptions which might affect whether you need to report or not. 

You also have to consider applicable state laws and/or local regulations, which may have reporting requirements that are more stringent than federal obligations. 

Organizations that use, store handle, or transport hazardous materials should have a pre-prepared release reporting procedure that is part of their emergency plan.  The reporting procedure should identify under what circumstances a release of each material must be reported, who is responsible for making emergency release reports, and which agencies need to be notified.

Is my Environmental Consultant required to report a spill that occurred on my property?  

 

Federal laws stipulate that the owner and/or operator of a facility make any required release reportings.  However, depending upon where you are located, there might also be state or local regulations that expand who is obligated to report a release. 

In the geographical areas where we typically operate, we as consultants do not report releases that have occurred at a client's facility.  Our obligation is limited to advising our client that a reportable release has occurred, and informing them that they are required by law to report the release.  If requested, we will also assist our client with the reporting process.

Unless required by law or rule, a consultant who unilaterally reported a release at a client's facility, without the express consent and authorization of the client, would be breaching both confidentiality and professional ethics.

 

Am I required to report contamination that is discovered on my property?  

 

Depends upon where you are located, and possibly also the source and nature of the contamination.

 

Many states require that any environmental contamination that is discovered be reported to an appropriate regulatory agency.  Conversely, some states only require that contamination resulting from a reportable release be reported.

 

In Oregon, contamination discovered during environmental assessment is often from undefined historical activities, and is classified as a "past-practices release" that is not required to be reported. 

 

Is my Environmental Consultant required to report contamination that is discovered on my property?  

 

Again, depends upon where you are located, and possibly also the source and nature of the contamination.

 

Many states require that contractors and environmental professionals report any contamination that they discover to an appropriate regulatory agency. 

 

In Oregon, only licensed underground tank decommissioning contractors, and licensed underground tank cleanup supervisors, are required by law to report environmental contamination that has resulted from "releases from an underground storage tank system".  In all other circumstances, our obligation as environmental consultants is limited to advising our client that contamination has been detected, and offering them an opinion as to whether the contamination represents a reportable release, or a past-practices release that is not required to be reported.

Unless required by law or rule, a consultant who unilaterally reported contamination that was discovered on a client's property, without the express consent and authorization of the client, would be breaching both confidentiality and professional ethics.

 
 

What is Environmental Due Diligence?  

 

The world of real estate operates from the premise, caveat emptor (let the buyer beware), the principle that a buyer alone is responsible for confirming the quality and suitability of a property before a purchase is consummated.  To protect their interests, a buyer or lessee is expected to perform due diligence, which is defined as the exercise of care and/or inquiry that a reasonable person is expected to complete before entering into an agreement or contract with another party.

 

Environmental due diligence is the reasonable standard of care taken by a prospective purchaser or lessee to establish the level of risk for environmental contamination, and potential liability, that is associated with a piece of property or a facility.

 

Since the early 1980s, the minimum standard of care for fulfilling environmental due diligence has generally been the completion of a Phase 1 assessment.  Depending upon the results of the Phase 1 assessment, additional inquiry and/or site evaluation may or may not be needed to satisfy the requirements of due diligence.

There is more about environmental liability, and environmental assessments, in the Knowledge Base.

What kinds of properties need an environmental due diligence assessment?  

 

Simplest answer:  Every property or facility should receive at least some level of environmental due diligence.

 

Industrial and commercial properties, where hazardous materials may have been used, handled, stored, or disposed of on-site in the past, for certain need the completion of a fairly comprehensive level of environmental due diligence.

 

But even properties that currently have no obvious risks for contamination (including residential properties) may have hidden secrets.  There may be a long-abandoned underground heating oil tank, or Lead-based paint on or asbestos in the building construction materials.  The property may have been the site of commercial or industrial activities sometime in the past, or have been used for agricultural purposes (pesticide residues).

Every property or facility should receive at least a cursory level of evaluation:  Determination of the historical uses of the property, and whether there is any derogatory information for the property, and immediate neighbors, in primary environmental agency records.

 

I've been told that I have to use the ASTM format for a Phase 1 environmental assessment:  Is that true?  

 

The U.S. Environmental Protection Agency (EPA) has already addressed this issue for All Appropriate Inquires (their term for environmental due diligence), where they have explicitly stated that the provisions of the All Appropriate Inquiries standard (40 CFR 312) “allow for the property owner and any Environmental Professional (EP)... to design and develop the format and content of a written report that will meet the prospective landowner’s objectives and information needs...” (Federal Register, Vol 70, No. 210: November 1, 2005; IVD, Page 66078).

So, according to U.S. EPA, the answer is no, you do not have to use the ASTM E-1527 format to fulfill environmental due diligence (All Appropriate Inquiries) requirements.

That said, most lenders and granting agencies prefer that Phase 1 environmental assessments that are submitted to them be completed using the ASTM E-1527 format.  A few agencies (e.g., Small Business Administration) require the use of the ASTM format.

So what happens if you have a Phase 1 assessment completed (to satisfy your due diligence needs) in some format other than ASTM E-1527... will a lender accept it?  In almost all cases, the answer is yes.  They may moan about it a bit, and maybe try to argue that the assessment has to be in the ASTM format, but in the end, unless they are prepared to demonstrate that the submitted work-product is somehow defective or deficient, they are more or less obligated to accept a quality due diligence assessment that has been prepared by a qualified Environmental Professional, irrespective of the assessment format that has been used.

There is more information about All Appropriate Inquires, the ASTM E-1527 assessment format, and the limitations of lender liability, , in the Knowledge Base.

 

The completed Phase 1 assessment suggests there is a possibility for contamination:  What do I do now?

 

There are two directions you can go:

 

1.  If it is obvious that the property is at a significantly elevated risk for contamination (i.e., high risk on-site occupancies such as a  gasoline service station, drycleaner, or metal plating facility have been identified), you need to decide whether the best option for you is to just walk away from the transaction.  If you decide that you are still interested in the property, you absolutely need to have a Phase 2 assessment conducted before proceeding any further.  

 

2.  If the level of risk identified by the Phase 1 assessment is less obvious, you may want to have the assessment independently reviewed to confirm that additional (Phase 2) assessment is actually warranted.  Unfortunately, people preparing ASTM-format assessment reports chronically mis-use the term "Recognized Environmental Condition" (REC), and often end up substantially overstating the risk that contaminants may be present on the assessed property.

 

Bear in mind that anytime there is a real potential for significant levels of environmental contamination to be present on a property, you should confirm the environmental quality of the property with a Phase 2 assessment.

 
 

What is the difference between a Phase 1 and a Phase 2 environmental assessment?

 

Phase 1 environmental assessment consists of the following primary elements:

  • determination of land use, occupancy, and activities conducted on the subject property back to the time that it was first developed

 

  • a review of regulatory agency records to determine if there is any documented environmental problems associated with the subject property, or properties located within specified distances from the subject property

  • a site inspection to identify indicators of releases or contamination, and materials, systems, and activities which might be sources for past and/or future contamination.

 

An environmental consultant uses the acquired Phase 1 information to provide an opinion as to the relative risk that environmental contaminants are present on the subject property.  If a significant risk is identified, additional assessment is often recommended.

 

A Phase 2 environmental assessment involves acquiring and testing environmental samples.  The scope of sampling and testing depends entirely upon information gathered during the Phase 1 assessment process.  Media that might be sampled includes surface and subsurface soil, surface water, groundwater, sludge, waste materials, and/or interior dusts.  The scope of a Phase 2 assessment can also sometimes including sampling building materials and equipment (asbestos; Lead-based paint; PCBs), testing indoor air (vapor intrusion), and/or conducting a geophysical survey to detect subsurface features such as underground storage tanks.

The purpose of a Phase 2 environmental assessment is to confirm whether contaminants, or potential contaminant sources, are actually present on the subject property.

 

Am I required to report the results of an environmental due diligence assessment?  

 

Depends entirely upon where you are located.

 

Some states require that you report the findings of any completed environmental due diligence assessment to a designated agency, especially if any contamination is detected, or if an elevated risk for the presence of contamination is identified.  A few states require that a copy of every completed due diligence assessment report be submitted to an appropriate agency(s). 

In Oregon, the findings of environmental due diligence assessments are not required to be reported, except where the assessment has identified the occurrence of a "reportable release".

 

Is my Environmental Consultant required to report the results of an environmental assessment?  

 

Again, depends entirely upon where you are located.

 

Some states require that the consultant report the findings of completed environmental due diligence assessments to a designated agency, especially if any contamination is detected, or if an elevated risk for the presence of contamination is identified.  A few states require that the consultant submit a copy of every completed due diligence assessment report to an appropriate agency. 

In Oregon, the findings of environmental due diligence assessments are strictly between the consultant and the party who has commissioned the assessment.  If there is evidence that a "reportable release" has occurred, our obligation ends with our advising our client of their responsibility to report the situation to appropriate agencies.

 

Unless required by law or rule, a consultant who unilaterally reported the results of an environmental assessment, without the express consent and authorization of the client, would be breaching both confidentiality and professional ethics.

Do the results of an environmental due diligence assessment guarantee that there is no contamination?  

 

Simple answer is, NO, absolutely not. 

 

The conclusions provided in a Phase 1 assessment are merely an opinion based upon a limited set of records and historical information, and a limited visual inspection.  There is no way that even the very best Environmental Professionals could guarantee that no contamination is present on a property based only upon this limited set of data.

 

A Phase 2 assessment involves the analysis of samples that have been acquired from a limited number of locations on the subject property.  The analyses themselves are limited to only those contaminants that there is reason to believe might be present on the property.  

 

Although a well-designed Phase 2 assessment should be able to detect the presence of generalized contamination on a property, a finding of no detected contamination is not a guarantee that there are no contaminants anywhere on the property.  There is always the possibility that one or more small, discreet areas of undetected contamination might exist on the site, or that unanticipated contaminants may be present on the property.

There is more information about the limitations of environmental due diligence in the Knowledge Base.

 
 

The seller of the property has provided me with an environmental assessment report:  Should I accept it?

 

A seller or lessor of a property, and sometimes even a previous owner, may have a previously-prepared environmental assessment report for the property.  It is completely acceptable for you, the prospective purchaser or lessee, to use an existing assessment provided that the work-product:

 

  • was prepared by a qualified Environmental Professional

 

  • is complete and up-to-date (older assessments may need to be refreshed)

  • contains findings and conclusions that are accurate

  • provides reasonable and appropriate recommendations

Assessment reports provided by a previous owner, seller, lessor, or any other third party should always be independently reviewed and evaluated by a qualified environmental professional to assure that they meet your environmental due diligence needs, and adequately protect your environmental liability exposures.

 

How much do environmental due diligence assessments cost?

 

The geographical location of the property, and the scope of assessment services, determine assessment costs.

 

Phase 1 assessment costs vary widely across the United States.  Currently, quality Phase 1 assessments for a typical commercial property are averaging, depending upon geographical location, anywhere from approximately $2,800 to upwards of $5,600.  Assessments for large and/or complex properties should be expected to cost more than these average prices.

 

Phase 2 assessment costs depend upon the number of sampling locations, the number of samples acquired at each location, and the scope of the analytical procedures used to detect potential contaminants.  Right now, in western Oregon, a typical three to four borehole Phase 2 assessment, analyzing for petroleum, petroleum constituents, and chlorinated solvents, costs in the range of $7,500 to $13,000.  Additional sampling points, analyses for additional contaminants, and/or the inclusion of geophysical surveys to identify subsurface features (e.g., underground tanks) will result in higher assessment costs.

All assessments and assessment providers are not equal.  Do not be tempted into hiring someone to conduct your environmental due diligence assessments for prices that are significantly less than the prevailing rates in your geographical area.  The results will likely be incomplete, inaccurate, and possibly even dangerous.

 

How long does it take to complete an environmental due diligence assessment?

 

A Phase 1 environmental assessment typically requires four (4) weeks to complete.  This amount of time is needed to acquire all of the required historical and regulatory agency information, schedule and conduct required interviews and site inspections, and then carefully analyze the data and prepare a report. 

The fastest that we've ever been able to complete a Phase 1 assessment is 13.5 days... but that was for a property next door to one that we had already assessed within the previous 10 months.  After more than 35 years of doing this, we know that it takes, on average, 20 - 35 days to produce a quality Phase 1 assessment report.

Individuals or firms who claim that they can consistently produce Phase 1 assessment reports in 5, 7, 10, or 15 days are cutting corners somewhere:  Either working with a limited set of data, or (very commonly) doing little to no data analysis.  The result is assessment reports that are incomplete, inaccurate, and potentially dangerous.  

 

Phase 2 assessments typically take 5 - 9 weeks to complete.  In addition to the typical 1 - 5 days of on-site work, there is also 1 - 2 weeks of preparation and scheduling, 1 - 2 weeks for a laboratory to complete the requested analyses, and then 2 - 3 weeks to analyze the data and prepare a report.

There are no acceptable shortcuts for completing quality environmental due diligence assessments, and you should never accept anything but the highest quality work-product that is available to you.

 

How can you determine if there is an underground tank on a property?

 

Finding a suspected underground tank can be a daunting task... unfortunately there's no one who has X-ray vision that can look into the ground and tell us if they see a tank.

If you are lucky, there might be:

 

  • someone with knowledge of the property who can confirm that a tank is still present, and show you where it is located

  • visible evidence of a tank, such as fill ports and/or vent lines.

 

Otherwise, you are going to have to have a geophysical survey conducted to try to locate an underground tank.

 

A quality geophysical survey will typically use at least two, and preferably three, complementary technologies.  These include:

  • electromagnetic scanner (metal detector)

  • magnetometer (detects magnetic fields generated by iron and steel)

  • ground penetrating radar (can identify disturbed soil and subsurface features)

As there are many surface and subsurface factors that can interfere with geophysical survey equipment, interpreting survey data requires a highly skilled and experienced geophysicist.  But even with a skilled surveyor, there is no guarantee that a tank will be detected.

When subsurface "anomalies" are found, probing and/or excavation is usually required to confirm the identity of the detected feature.

The cost to conduct a geophysical survey depends upon the size of the area to be surveyed, and varies widely by geographical location.  In western Oregon, geophysical surveys to locate underground tanks typically cost in the $ 1,500 (small commercial site) to $ 7,000 (mid-sized industrial site) range.

 

How do I know if the waste materials I generate are hazardous wastes?  

 

You need to conduct a wastestream evaluation, and possibly also a waste characterization.

 

The first step is to determine what regulated waste materials (as opposed to by-products that can be recycled or beneficially reused)  that you are actually generating. 

 

Once you know what you are generating, you can then use chemical and/or process information, field testing (categorization), and/or laboratory analysis to determine if individual waste materials meet the definition of a hazardous waste.

Hazardous waste definitions are very specific, sometimes complex, and often subtle.  The difference between an "and" and an "or" in a definition can be the the deciding factor as to whether your waste is a hazardous waste or not.  Many hazardous wastes are process specific, and many of the hazardous waste definitions contain one or more exceptions.  When trying to determine if you are a hazardous waste generator, you should always obtain the assistance of someone who fully understands the intricacies of hazardous waste definitions and regulations.

 

How do I dispose of the hazardous wastes I generate?  

 

Hazardous waste regulations are complex, you retain strict and long-term liability for the wastes you generate, and there can be substantial penalties if you do it wrong.

There are three (3) levels of hazardous waste generators, determined by the quantity of hazardous wastes that are generated in a month:  Conditionally-Exempt Small Quantity Generator (CESQG), Small Quantity Generator (SQG), and Large Quantity Generator (LQG). 

Conditionally-Exempt Small Quantity generators are exempt from a lot of the administrative, record keeping, and storage limitation provisions of the hazardous waste rules.  In many areas of the country, local or state agencies offer simple, relatively inexpensive waste collection and disposal services for CESQGs.  Where available, this is often the most cost-effective method for disposing of small quantities of hazardous wastes.  If not available, you will probably have to follow the same process as small and large quantity generators.

Small and large quantity generators need to obtain a "RCRA Site Information Number" (aka Hazardous Waste Generator ID Number;  EPA ID Number) from either a state environmental agency or the U.S. Environmental Protection Agency.  Once you have the ID number, you can hire a waste management company to collect, transport, and dispose of your hazardous wastes. 

 

Choose you hazardous waste management contractor carefully.  You will be responsible (liable) for the wastes that you generate forever, so you want to be sure that you select a contractor who will dispose of the your wastes in accordance with all applicable regulations, provides you with a certificate of destruction / disposal, has sufficient insurance to cover any accidents that might occur during transport, storage, or handling, and has sufficient assets to cover the costs of any regulatory actions or required site cleanups.

 

What is process wastewater, and how do I dispose of it?  

 

Quite simply, process wastewater is any water-based by-product that is generated by or released from an industrial or commercial process or activity.  Process wastewater includes things such as:

  • water used in or generated by any type of manufacturing, drying, packaging, or storage process

  • wash waters  (e.g., runoff from washing of vehicles, equipment, buildings, or surfaces)

  • cooling water and boiler blowdown that contains any type of potential pollutant

  • water used to keep raw materials or finished products wet

  • water used as a storage medium (e.g., log storage ponds)

 

Process wastewater that is discharged to a waterway requires (depending upon the source and nature of the water) either a federal  NPDES permit or a state-issued permit (e.g., a water pollution control facility (WPCF) permit).  There are pollutant limitations, and monitoring requirements, associated with both permits.  Discharge of process wastewater to publicly-owned stormwater drainage systems is generally not allowed.

In some cases, process wastewater can be discharged to a publicly-owned sanitary sewer system.  This type of discharge is typically regulated by the local agency that owns and operates the sewer system and wastewater treatment facilities, and specific authorization must be obtained before releasing any process wastewater into a sewer system.  There are usually a variety of restrictions and limitations as to what can be discharged, and routine monitoring requirements, associated with disposal of process wastewater via a sanitary sewer system.

 

How do I know if my facility is required to have a stormwater discharge permit?

 

Federal stormwater permits are required by industrial facilities that fall within specific Standard Industrial Code (SIC) classifications.  You should check either the U.S. EPA, or your state's environmental agency, website for a list of the SICs that are required to get an NPDES stormwater permit (issued by either EPA or an EPA-authorized state agency).  In some cases you can be exempted from obtaining a permit if you can demonstrate that stormwater is not exposed to potential pollutants (e.g., all of your activities are indoors or under cover), or that there is no discharge of stormwater runoff from you property.

Federal stormwater permits are also required for many types of construction activity (determined by the number of acres to be disturbed).

And you should be aware that some states apply stormwater permit requirements to a universe of facilities and activities that is broader than federal requirements.

Local government also has a duty to protect and manage the discharges from their publicly-owned stormwater drainage systems.  There may be local-level stormwater rules that apply to facilities and activities that are not covered by federal permit requirements (e.g., retail parking lots).

Many local areas also have stormwater programs that apply to properties being newly-developed or redeveloped.  These programs often require a local permit, and demonstrated design features to minimize stormwater runoff, and/or to actively or passively treat runoff. 

 

What is a Clean Water Act citizen lawsuit?

 

When the U.S. Congress enacted the Clean Water Act (CWA), they included a provision that allows individuals, environmental groups, and others to enforce the Act (i.e., act as a surrogate for the U.S. Attorney General) by filing a lawsuit in federal court.  The idea was that this would act as a lever (or hammer) to encourage polluters to comply with the CWA.

The citizen lawsuit provision allows plaintiffs to prosecute for ongoing violations (e.g., not having a permit or repeatedly violating the terms and conditions of a permit), and seek enforcement, injunctive relief (e.g., actions to further improve an impacted waterway), attorneys' fees and expenses, and penalties (up to $ 37,000 per day, per violation).

 

Be aware:  There are probably people actively monitoring discharges (process wastewater and stormwater) to waterways in your local area, who will attempt to file a lawsuit against you if they believe you are operating in violation of the Clean Water Act.  It is therefore in your best interest to make sure that you possess all required discharge permits, that you diligently and at all times operate in full compliance with the terms and conditions of your permit, and that you immediately correct any deficiencies or violations. 

 

When remediating contaminated sites, how clean is clean enough?

 

Back when remediating contaminated sites first became a thing in the late 1970s and early 1980s, there was limited guidance as to what was "clean enough".  "Non-detectable" levels of contaminants (i.e., zero) was often the required cleanup target in these early days.

 

In the late 1980s, U.S. EPA developed "health-based" remediation criteria, for a limited number of contaminants, for use at hazardous waste cleanup sites.  For lack of anything else, these criteria often became the default environmental cleanup targets.  Additionally, many state environmental agencies began establishing their own remediation targets, especially for petroleum and petroleum constituents (underground tank cleanups), throughout the first two-thirds of the 1990s. 

In the late 1990s, remediation goals shifted to a "risk-based" approach.  Acceptable levels of residual contamination began being determined based upon the potential adverse health effects that could result from exposure to contaminants through specific exposure settings (e.g., residential; occupational; construction worker) and exposure pathways (e.g., ingestion of drinking water; inhalation of vapor; skin contact).  This more practical method for determining appropriate contaminant cleanup levels continues to be the one that is most often used today.

There is more about risk-based cleanups in the next answer.

 

What are Risk-Based Concentrations (RBCs) and what is a risk-based closure?

 

Risk-Based Concentrations (RBCs) are remediation target levels (cleanup standards) that are believed, based upon risk assumptions and calculations, to be protective of human health and the environment. 

 

Using a risk-based cleanup process, contaminated properties are evaluated for exposure pathways, including:

  • ingestion, inhalation, or dermal contact with contaminated soil

  • evolution of contaminant vapors into outdoor air

  • intrusion of contaminant vapors into buildings

  • ingestion or inhalation of contaminants from tap water

  • exposure to contaminated groundwater in excavations,

 

  that may exist within specific exposure settings (e.g., residential; occupational; construction worker; excavation worker).

 

For each contaminant, the RBC that corresponds to the applicable exposure setting - exposure pathway pair becomes the target cleanup level that must be attained. 

 

There are often published "generic" RBCs that have been prepared using a set of conservative standard assumptions.  Where actual site conditions deviate significantly from standard assumptions, site-specific RBCs can be calculated.

A "risk-based closure" is the acceptance of an exposure risk evaluation and completed remedial actions (to at least applicable RBCs) by an environmental regulatory agency, leading to the issuance of a letter of "No Further Action" (or equivalent) for a contaminated property.

 

What are the limitations of a letter of No Further Action (NFA) from a regulatory agency?

 

Too many people, including many prospective buyers and environmental consultants, operate under the mistaken opinion that a letter of "No Further Action" (NFA) from an environmental agency represents some sort of certification or guarantee as to the overall environmental quality of a property.  In reality, it often does not.

When an agency issues an NFA (or equivalent), they are usually only acknowledging, based upon the information that they have been provided, that the completed investigation and remediation activities appear to meet currently-applicable cleanup standards.  Most agencies do not independently verify the results of a remedial action: They have to assume that the work was completed by competent individuals, and that the final condition of the property has been accurately and honestly represented to them.  Depending upon who  submitted the work, this may or may not be a valid assumption (unfortunately, far too many of the NFAs that were issued in the late 1980s, and throughout much of the 1990s, were based upon work that was of dubious quality).

It is also very important to understand that, in many cases, the scope of an NFA is limited to a specific situation and a discrete area, and does not address conditions on the property as a whole.  For example, an NFA issued for the cleanup of gasoline identified during the decommissioning of the last generation underground tanks (1985 installation), on a property that has been used as a service station since the 1920s, might not cover contamination resulting from:

  • the 3 - 5 earlier generations of underground tanks that were located in a variety of different places on the property, or,

  • historical automotive servicing and repair activities conducted on the property, including but not limited to,

- chlorinated degreasing solvents

- used lubrication oils

- battery electrolyte (Lead)

- hydraulic oil leaked from vehicle lifts (PCBs)

We have in fact seen multiple instances where a prospective buyer has relied upon an NFA as a "certification" that a property is "clean" ("if it's good enough for DEQ, it's good enough for me"), has against recommendations purchased the property without further assessment, and then later ended up having to complete a very costly environmental cleanup for contamination that was outside the scope of the NFA.

 

Another limitation of NFAs is that they are not irrevocable.  Most letters of No Further Action contain language that in one form or another states that the NFA can be rescinded if new information comes to light.  We've seen multiple instances where this is exactly what has happened.  If someone encounters contamination while excavating on or near your property, that NFA can disappear in the blink of an eye.  And in the worst-case scenario, you end up having to go back to square-one in the investigation and remedial action process, and may even have to remediate to a new, more stringent cleanup standard.

Lastly, having an NFA for a property does not mean that there is no contamination left on the property.  An NFA only means that a regulatory agency believes that the residual levels of contamination meet applicable cleanup standards.  Depending upon the cleanup program and the standards used, there could still be significant levels of contaminants remaining on the property.

You should never rely solely on a letter of No Further Action as an indicator, certification, or guarantee of the overall environmental quality of a property.  If you are contemplating purchasing or leasing a property that has been issued an NFA, you should consider retaining a qualified environmental professional to review the NFA (particularly what areas, contamination sources, and contaminants were covered by the NFA), and also, if possible, the scope, quality, and completeness of the work that underlies the issued letter of No Further Action.

 

I'm planning a major expansion / re-configuration of my facility:  At what point should I bring an Environmental Consultant into the planning process? 

 

The earlier the better.

 

Your project may require a variety of project-related permits, and/or surveys (e.g., wetlands; riparian disturbance or fill) to be completed.  And, if you already have operating permits (e.g., stormwater or process wastewater discharge), you will probably need to notify and get authorization for your project from the permitting agency(s) of jurisdiction (especially if any of the permits will be modified).  There may also be one or more environmental "management plans" that have to be prepared and submitted before construction work can begin.  A consultant can help you identify and meet pre-construction environmental requirements.

 

An expansion or major re-configuration project is also an excellent time to review and possibly upgrade compliance systems and programs.  For example, this would be the time to consider whether you can tie segments of your stormwater drainage system together to reduce the number of discharge points that you have to maintain and monitor.  It is also a good time to evaluate whether installation of discharge control or minimization, and/or treatment systems, might improve the quality or reduce the quantity of your discharged water.

Bear in mind that the permitting and regulatory compliance portion of a major project could take 12 - 24 months to complete, so be sure to start your planning process early enough in order that construction can begin within your desired timeframe.  Bringing an environmental consultant into the project planning process right at the beginning can help you navigate the often times complex and time consuming regulatory process so that construction can commence as soon as reasonably possible.

 

What is "All Appropriate Inquiries" (AAI)?  

 

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA; the “Superfund” law) provides specific defenses from liability for investigation and cleanup of environmental contamination.  These defenses rely upon a property owner, operator, or tenant having fulfilled “all appropriate inquiries” (i.e., environmental due diligence).

Amendments to CERCLA in 2002 mandated U.S. EPA to (finally) develop specific regulatory requirements, standards, and practices for conducting all appropriate inquiries.  A proposed rule was issued in August 2004.  After a year-long public review and comment period, a final rule was published in November 2005, and became effective on November 1, 2006. 

Whereas ASTM E-1527 is a prescriptive (checklist format) standard that has been issued by a private consensus organization, AAI is a performance-based rule that carries full weight of law.  AAI is the law of the land… the “gold-standard” which environmental due diligence must meet in order to provide a legally-based defense against liability for environmental contamination.

There’s more information about All Appropriate Inquiries in the Knowledge Base.

 

Does ASTM E-1527 automatically fulfill all of the requirements of "All Appropriate Inquiries" (AAI)?

 

The American Society for Testing and Materials (ASTM) loves to represent that their E-1527 Phase 1 Environmental Site Assessment “practice” fully complies with AAI (U.S. EPA’s  All Appropriate Inquiries rule; 40 CFR 312).  But in reality, it’s not that clear-cut.

The AAI rule does contain the following statement: “The procedures of ASTM International Standard E 1527”… “may be used to comply with the requirements set forth in Sec. 312.23 through 312.31” (of the AAI rule).  But nowhere in the rule does it say that ASTM E-1527 “fully complies with AAI”, or even suggest that use of ASTM E-1527 assures fulfilling all of the requirements of All Appropriate Inquiries. 

In fact, in regards to a prescriptive (checklist) approach (such as ASTM E-1527) for conducting All Appropriate Inquiries, EPA has stated: ...“simply conducting the checklist of activities and ending the investigation after each activity is conducted would not result in protection from CERCLA liability” (Federal Register, Vol.  70, No. 210: November 1, 2005; IV-L, Page 66086).

The fact is, simply completing the nine (9) technical specifications of AAI (40 CFR 312.23 through 312.31) in checklist fashion will not assure that the requirements of All Appropriate Inquiries have been met. 

 

In the end, it is the scope and accuracy of data acquisition, the critical analysis of the acquired data, and the rendering of an appropriate and defensible opinion, that determines if regulatory obligations under AAI (i.e., environmental due diligence) have been fulfilled.  Depending upon who completed the work, an environmental assessment completed using ASTM E-1527 may or may not comply with the intent and specifications of AAI.

Bottom line:  Just because an environmental due diligence assessment is represented to have been conducted using ASTM E-1527, does not automatically mean that it complies with or meets the requirements of All Appropriate Inquiries.

There’s more about ASTM E-1527 in the Knowledge Base.

 

What is a "Recognized Environmental Condition" (REC)?  

 

The term “Recognized Environmental Condition” (REC) is a construct developed and defined by ASTM in its E-1527 Phase 1 Environmental Site Assessment “practice”.

As defined by ASTM, a ”Recognized Environmental Condition” requires that:  

  • there is enough information from some source or observation to conclude that environmental contamination is either known to be present on the property, or is probably (e.g., 85% or greater confidence level) present on the property, or,

  • there is some condition that indicates that there is an imminent threat for a release of contaminants to occur.

It is important to note that the definition of a REC only covers known or probable contamination… the idea that contamination is possibly present is completely outside the scope of the definition for a REC.  And therein lies the flaw in the concept of a REC, as defined by ASTM.

If the term REC is used properly, and strictly within the scope of the definition, there is a significant risk that some circumstances or conditions where there is elevated risk for contamination will not be identified as a REC (i.e., contaminants are only possibly present).  And if these circumstances or conditions are not identified as a REC, there is the potential that additional assessment will not be recommended, which could lead to someone purchasing a property that might have significant contamination issues.

To get around the possible contamination issue, many consultants modify the term REC and use it outside the scope of its definition.  However, this creates a “deviation” from the ASTM standard that potentially results in the assessment, and its findings, conclusions, and recommendations, being legally indefensible.

Worse yet, to protect their own liability, some consultants use the term REC completely incorrectly and apply it to structural features and systems (e.g., tanks; oil-water separators; catchbasins; wells), and/or the historical uses of or activities conducted on a property.   This kind of improper use of the term REC can result in a “dark cloud” being cast over a property, often time leading to unnecessary additional levels of assessment having to be conducted.

Bottom line:  With assessments conducted using the ASTM E-1527 “practice”, be very, very careful in regards to the term Recognized Environmental Condition.  Just because no REC was identified by an assessment does not mean that there is no risk for contamination being present on a property.  And, if a REC is identified, be sure that the term has not been used improperly and outside the scope of its ASTM definition, as that can create environmental “problems” where none actually exist.

There’s more information about Recognized Environmental Conditions in the Knowledge Base.

 

Isn't a Phase 1 Environmental Site Assessment just something to be completed for the bank?

 

We hear “I just need something for the bank” way too often… and it’s usually the sign of someone who really doesn’t have a lot of experience buying or leasing commercial or industrial real estate.

Yes, most lenders are going to require that you submit some sort of environmental due diligence assessment to them.  But their reason for wanting an assessment is very different from why you need to have a quality environmental due diligence investigation completed.

 

Lenders have no regulatory liability for contamination:  In almost all cases, they cannot be required to cover the cost of investigating and remediating a contaminated property on which they hold a mortgage.  You on the other hand can be compelled to underwrite the entire cost of an environmental cleanup… tens of thousands of dollars, hundreds of thousands of dollars, in some cases even millions of dollars. 

The only reason that lenders ask for an environmental due diligence assessment is to satisfy their loan-loss protection requirements.  During the Great Recession (2008 – 2012), many lenders discovered that they held mortgages on contaminated properties that, when they foreclosed, were worthless.  They ended up having to abandon these properties and write-off the loans as a loss.   So when a lender requires you to submit an assessment, it’s for their protection, not yours.

You should always have a quality assessment conducted, one that satisfies your due diligence requirements and protects your liability exposures, whenever you buy or lease commercial or industrial property. 

Do not let a lender hire a consultant for you, and assume that the resultant assessment will also meet your due diligence needs… because it probably will not (and, the lender is the owner of the work-product, and does not have to share it with you).

Do not let a lender pressure you into retaining one of their “preferred” assessment providers, because historically, the quality of the work produced by these lender – consultant arrangements has been very poor. 

Do your own research, hire your own consultant, and protect your own environmental liability risks.

 

There’s more information about lender liability in the Knowledge Base.

 

 

Should I require my environmental due diligence provider have Professional Liability insurance?

 

Professional Liability insurance, also known as “Errors and Omissions” (E&O) insurance, does not guarantee that you are protected against losses or damages resulting from an incorrect opinion about the environmental quality of a property.

In fact, in most cases, the only way you are going to collect on a Professional Liability insurance claim is if you can demonstrate that the person conducting the due diligence assessment:

  • made an error by failing to identify and/or properly evaluate the significance of a piece of available information, or

  • omitted some required element of the assessment process.  

To successfully defend against an errors and omissions insurance claim, the person conducting an assessment only has to document that they followed a standard assessment process, reviewed all required and other accessible and reasonably-ascertainable sources of data, and formed an opinion as to the risk for environmental contamination that is supported by the information that was available to them.

So, even if the final opinion is shown to be completely wrong, there is a very good chance that you will not collect on a Professional Liability insurance claim unless you can establish that there was some procedural error or omission associated with the assessment.

Do not make the mistake of assuming that that an insurance policy is a substitute for the services of an exceptionally-qualified Environmental Professional, or that Professional Liability insurance is going to protect you from the consequences of an incorrect opinion about the likelihood of environmental contamination being present on a subject property.

 

What is a "Universal Waste"?

 

Universal  Wastes are materials that contain hazardous constituents, but are not regulated as hazardous waste.  They are called “universal” wastes because they are commonly generated by a wide variety of activities and facilities. 

 

The purpose of Universal Waste regulations is to promote recycling, reclamation, or proper disposal of the hazardous constituents contained in these wastes. 

 

Federal Universal Waste rules (40 CFR 273) cover four types of waste materials:

 

  • Batteries (all types that are not otherwise regulated as hazardous waste)

  • Lamps (i.e., light bulbs; especially, but not limited to, fluorescent and high-intensity discharge types)

  • Mercury-containing devices (devices containing liquid mercury, such as thermostats, switches, and instruments (e.g., thermometers; barometers))

  • Some types of pesticide waste

Under federal regulations, facilities that generate regulated quantities of Universal Waste are subject to a variety of waste accumulation and storage, labeling, management, and transportation rules.  Universal Wastes must be delivered to authorized processing facilities for recycling, reclamation, and/or appropriate disposal.  However, households, facilities that do not generate hazardous wastes, and facilities that are classified as conditionally-exempt small quantity generators (CESQG) of hazardous waste, may be exempt from federal Universal Waste rules.

It is important to note that many states have Universal Waste regulations that cover a broader range of waste materials, and have Universal Waste management requirements that are significantly more stringent, than federal rules.   For example, aerosol cans, paint wastes, antifreeze, electronic wastes, and televisions and other cathode ray terminals (CRTs) are Universal Wastes that are regulated by some states.  Many states also specify threshold quantities (number of units or weight) of waste lamps and waste batteries that trigger regulation and disposal requirements under state rules.

As with hazardous wastes, facilities should conduct a wastestream evaluation to determine if they are generating regulated Universal Waste materials, and then develop a program to comply with applicable federal and state Universal Waste rules.

 

How do I dispose of wastes that contain low levels of naturally-occurring radioactive materials?

 

Many products can contain naturally-occurring radioactive materials.  

 

Examples include:

 

  • products containing zircon sand (e.g., fire brick and furnace brick; sand blasting grit; foundry sand and sand-based foundry molds; spun ceramic insulation (mineral wool; Rockwool); zircon sand ceramics, including high-voltage arc chutes, circuit breakers, and insulators

  • aluminum oxide abrasives

  • grinding wheels and polishing compounds manufactured with rare earth elements (residual uranium and/or thorium)

  • welding rods containing thorium

  • products containing uranium-based pigments, such as the infamous, brightly-colored clay dinnerware known as Fiestaware.

 

These products often emit low-level radiation, and while they generally do not pose a significant safety or health risk, they can trigger port-of-entry and disposal / scrap recycling facility portal alarms. 

 

Some states give these types of materials a blanket exemption, and allow them to be disposed of in standard sanitary landfills.  At the other end of the regulatory spectrum are the states that prohibit any type of radioactive material from being disposed in either a sanitary landfill or a chemical waste landfill.

If you are located in a state that prohibits landfill disposal of low-level, naturally-occurring radioactive materials, your only option is to manage the material(s) as a radioactive waste.

The most efficient and cost-effective option is to find a radioactive waste contractor who will provide "turn-key" services (i.e., will handle all the paperwork; manifesting, permitting, packaging, transportation, and final disposal).  In many parts of the country, there are contractors who pickup low-level radioactive wastes from their clients on a regular basis (the "milk run").  You will often save significant money if you can adjust your disposal schedule to match the contractor's milk run.

As with hazardous wastes, you pretty much retain responsibility for the wastes that you hand off for disposal forever.  So research, vet, and choose your contractor very carefully, and select a contractor who will dispose of the your wastes in accordance with all applicable regulations, provides you with a certificate of destruction / disposal, has sufficient insurance to cover any accidents that might occur during transport, storage, or handling, and has sufficient assets to cover the costs of any regulatory actions or required site cleanups.

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