Remediating contamination at your property may not be as scary as you once thought. Yes, it can hit the checkbook hard or even squash the loan or refinance you were hoping would come through. But there are steps you can take to reduce the headache of achieving regulatory compliance.
Let's say you've completed a Phase I ESA followed by a Phase II subsurface investigation, all to learn that you have a more serious issue and the property needs more work in order to satisfy the regulatory agency in the state. The "more work" is environmental remediation (which is also referred to as site characterization or a Phase III Environmental Site Assessment), but you don't have the slightest clue what steps need to be taken. Well, before you start poking holes every 25-feet here are a few thoughts to consider:
Reporting to Regulatory Agencies
If you've got contamination - i.e. impacts above regulatory action levels are identified at your property - the report and findings should be submitted to the appropriate regulatory agency for their review and comment. However, regulatory action levels and specific reporting requirements vary by state and it is important that you or your consultant carefully consider what applies to your case. For example, in Minnesota it's the responsibility of the parties present onsite who discover the release (for example the driller, consultant or the property owner) to report identified impacts (visual, olfactory or data analysis) within 24 hours of discovery to the Minnesota Pollution Control Agency (MPCA). If impacts are identified at a property in Missouri, the Phase II subsurface report should be submitted after its completion for the Missouri Department of Natural Resources (MDNR) for review and comment. New Jersey established its own program to issue licenses to qualified individuals (known as Licensed Site Remediation Professionals or "LSRP") to conduct the remediation of sites. As such, all remediating parties in New Jersey must use the services of an LSRP to conduct environmental investigations and cleanups of their site prior to NJ Department of Environmental Protection (NJ DEP) approval.
Contacting your Attorney, Insurance Fund or Assistance Programs
Once the impacts have been reported, it is up to the regulatory agency to determine how to proceed. If additional site characterization is necessary, the property owner should contact their attorney in order to determine or verify liability. After this a call to the insurance agency may be necessary. Some states offer additional assistance for reimbursement either through the regulatory agency, such as the Drycleaning Environmental Response Trust Fund (DERT) Fund or through a third party like Missouri's Petroleum Storage Tank Insurance Fund (PSTIF), which work closely alongside the regulator. These programs will also assist in efforts to achieve regulatory compliance, so it is important for property owners to talk with the consultant and the regulatory agency to determine what options are available to them.
Before Onsite Work Begins...
Onsite work can cost a lot of time and money if the proper remedial design and technologies are not considered. When it comes to remediation, you shouldn't just jump into the deep end of the pool and hope for the best but I also wouldn't recommend testing the water with every toe on the swim team to see if one ripple makes a difference before taking action. The Interstate Technology and Regulatory Council (ITRC) has fantastic resources available in order to help parties involved with a site that requires remediation to properly assess the larger picture and determine if – for example - you must eliminate the bulk of the impacts, or just residual contaminants. The framework laid out can be used on multiple types and sizes of sites.
Recommended Remediation Process
The recommended process flow for environmental remediation is as follows:
- Characterization (plume delineation) and determining the horizontal and vertical extent of the impacts in order to develop a conceptual model;
- Identify goals/site conditions to screen;
- Identify geological factors, evaluation factors and minimum data requirements and critical technology;
- Establish goals, metrics and implement remediation;
- Monitor and assess remediation performance; and,
- Demonstrate goals in order to obtain regulatory closure.
Following these steps will shorten the time and hopefully lessen the amount of money spent by property owners to achieve full regulatory compliance. A good consultant can guide you through the remediation process form start to finish, and point you to any available reimbursement programs to reduce the financial burden – and make the whole remediation process a lot less scary!
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Janet Annan
Janet Annan is the Technical Director of SBA Services at Partner Engineering and Science, Inc. She has over 13 years of experience in the environmental due diligence service industry, specifically providing technical expertise and senior review for ASTM, AAI, and SBA requirements on RSRAs, TSAs, ESAs, and Phase II ESAs. She is a technical expert on all aspects of environmental due diligence required for SBA loans. Ms. Annan has a BA in geology from the University of Kansas, and her certifications include AHERA Asbestos Inspector registrations in Kansas and Missouri, as well as Underground Storage Tank Operation.
