Terradex launches DigClean.com as a portal for excavators to gain health and safety information when excavating at contaminated sites.

Slowly but surely, often with close involvement of Terradex, the power of one-call helps manage cleanup sites.  In every state, call-before-you-dig or “one call” laws require a phone call (or increasingly an electronic notice) of the planned dig.  State one-call centers route the resulting “excavation tickets” to the people and companies who own or operate underground lines who, in turn, send back “all clear” messages or mark the lines so excavators don’t hit or damage them.   For over ten years, many who study environmental cleanup and, in particular, post-cleanup institutional control (IC) compliance see the one-call regime as a valuable tool for cleanup site management.

Leveraging one-call for environmental cleanups makes sense.  Like one-call’s conventional focus on underground utility lines, cleanup site engineered processes and residual contamination poses an underground potential hazard to excavators and the environment.  Indeed, a series of EPA One Call Pilots concluded that “the one-call system can be utilized as an effective means for IC notification.”  And in its report on Land Use Control Management Systems, the Interstate Technology Regulatory Council concluded that:

“states need to implement LUC management systems” and “One-Call system[s] provide a ready made network that could be adapted to include LUCs … notification systems, such as Terradex” in combination with One-Call systems “would provide a high level of protection.”

More recently, EPA’s Five Year Review Supplement on Recommended Evaluation of Institutional Controls recognized the potential role of One Call.  ”State one-call systems [] can protect the public and environment from uncontrolled excavation and help identify breaches to the ICs.”  Finally, ASTM’s Continuing Obligation Guide similarly identified one-call systems as possible practices for monitoring compliance with institutional controls.

Increasing Use of One Call at Environmental Sites

Agencies in California, Utah, West Virginia, and a large Superfund Site in Idaho, currently coordinate with one-call systems to help monitor and protect cleanup remedies.  And Delaware is gearing up to begin a one-call effort, while New York is moving towards a one-call pilot.  See States and Locals Gather on the Web to Talk ICs.    Other states are closely looking at it.  In addition to state agencies, Terradex also helps some responsible private companies across many states, by leveraging one-call to monitor for inappropriate land activities at sites they own, operate, and even those sold away to new owners.   Among many other examples, Terradex prevented contaminated soil from being hauled away as clean fill and prevented excavation and well construction through contaminated groundwater.

Terradex’s Dig Clean Service for Environmental Advisories Through One Call

Overview Presentation Video

With the recent launch of Dig Clean, Terradex continues to help and improve the way one-call systems can be leveraged for use at cleanup sites.  And with the Dig Clean model, the per-event pricing proves extremely affordable, even under tight budgets.  The process goes like this.  A state environmental agency, for example, downloads or otherwise lets Terradex know about the IC areas or other environmental contamination areas of concern. We load those into our Dig Clean system.  And we deploy Dig Clean as  a “receiving station” for one-call generated excavation tickets.  We filter the tickets against the contaminated areas or IC areas.   When we find an excavation in conflict with an IC, we send a Dig Clean advisory as an e-mail, fax, text message, or automated voice message, depending, and make it accessible at the Dig Clean web page.  See the overview presentation video.

With Dig Clean, environmental agencies, excavators, or anyone with a Dig Clean-provided Ticket Number can view combined details about the excavation and underlying environmental conditions.  This advisory, in turn, informs and alerts stakeholders, facilitates additional communication if necessary, and truly “gets the right information to the right people at the right time.”   Excavators can get the notice they need about any environmental or health risks and environmental agencies help assure that their cleanup remedies remain protective.

Dig Clean Excavation Advisory

Terradex users get additional features, above that available publicly at Dig Clean.  Terradex users can store, view, and generally manage excavation advisories related to their sites of interest.  This gives keen insight while also providing a stored record about the nature and frequency of land activities at environmental cleanup sites – a valuable resource for long term stewardship managers.

Like all new things, however good, coordinating the underground utility-focused one-call regime for use at environmental cleanups takes time and pioneering efforts.  While states and private companies continue to make good progress, a fully coordinated process doesn’t yet exist and the coordination that makes sense at one site or at one state may differ.

Terradex Users Can View And Manage Current and Historical Excavation Activity At their Sites

Recognizing this, the Terradex and Dig Clean process provide enormous flexibility that allows advisories to be sent whenever and however the situation demands.  We hope this tool, with all its flexibility, continues to further our business of improving environmental protection and health and safety.

Map image of cities of Sunnyvale, Mountain View and Palo Alto California showing extent of shallow groundwater plumes containing volatile organics.

Groundwater contamination plumes often migrate off-site beyond the site where the chemicals were released.   The fate of the off-site plume poses a vexing risk management challenge for the regulator, potential responsible parties and even affected local governments.  Terradex’s LandWatch is an efficient and effective adjunct to the risk management plan for an off-site plume. LandWatch informs the risk manager when sensitive activities or uses that could compromise the plan are likely to occur. As a helpful corollary, LandWatch can report that these unsafe activities have not occurred and thereby bring greater confidence to the success of the risk management plan. Regulatory oversite agencies and local government can have greater surety that residual plumes will not impact the communities migrate beneath.

In this post we introduce some of the challenges off-site groundwater plumes pose, and show that Terradex LandWatch can be applied to to an off-site plume that migrates through both commercial and residential zones.  With Terradex LandWatch the risk management for the off-site plume is strengthened thereby raising community health and safety.

So what are the challenges posed by off-site groundwater plumes? Risk management plans often are postulated on the ability to control or limit activities that would be impacted by the residual contamination.  The most problematic plumes are relatively shallow and contain disolved persistent volatile organic chemicals. The risk management plan for an off-site plume offers to restrict the use of groundwater for drinking, control the extraction of groundwater from basements or dewatering, or limit the inhalation of volatiles from vapor intrusion.  However, controlling land use and activity is difficult when the residual occurs beyond the property where the spill originated.  Covenants on off-site properties are typically not practicable as many impacted landowners will not agree to a restriction on their property. Even locally enacted groundwater ordinances can falter as their effectiveness is only as strong as the local government’s oversite vigilance.

Vapor intrusion is an additional risk management challenge introduced when off-site groundwater plumes contain volatile organics compounds. The risk management plan needs to confront new exposure pathways introduced by the development of occupied basements, or changes in occupancy such as the start of a new day care center. When a residential neighborhood contains hundreds of properties, tracking the occurrence of these potential new pathways demands new approaches for monitoring.

Terradex LandWatch makes a risk management plan smarter and more effective by informing the plan of new exposure risks.  Terradex works like a land activity and use smoke alarm that alerts the risk manager to potential unsafe events inside the plume area. When the plan relies upon controlling drilling, excavation or occupancies, the plan is bolstered when knowledge of likelihood of these events are transmitted before not after the event.  Terradex LandWatch provides just this continuous monitoring and alert service.

Let’s consider a scenario where LandWatch is applied to an off-site plume. In the figure below, a shallow groundwater plume (red) migrates from a site (Zone A) through a commercial zone (Zone B) into a residential zone (Zone C).  The site property has been sold and the plume remediated to the extent practicable. The post remediation risk management includes a deed restriction on the site, and an off-site risk management plan premised on controlling sensitive land activities and use.  An emerging concern in the residential zone (Zone C) pertains to vapor intrusion into residential basements.

Risk management zones and LandWatch monitoring zones coincide.

Three different risk management zones have been placed around the site and the groundwater plume: Zone A, B and C.  Zone A encompasses the site. On the site the risk management objective includes the protection of a buried liner as an engineered control and assuring effective conveyance of institutional controls associated with the institutional control to future site owners. (Three parcels and thereby owners compose Zone A.)  Zone B encompasses a commercial zone above the groundwater plume, and the risk management objective is to limit groundwater contact, and not allow day care or other sensitive uses.  Zone C is a residential zone, and the emerging risk management objective is associated with vapor migration from the attenuating plume. Of particular concern is any development that might lead to construction of new residential basements.

In LandWatch, the risk management zones are deployed as LandWatch monitoring zones where alert criteria align with stipulations within the risk management plan. A risk manager can select from a menu of land activity and use sources available in nationwide, and now being extended to select international coverages. If the risk management plan sought to limit groundwater usage, then the LandWatch monitoring zone would track new water well permits or new excavations that could encounter groundwater.  Alternately, if a risk management zone specified no childcare, then the LandWatch monitoring zone would track new licensing activity for childcare.

For this off-site groundwater plume scenario, risk management objectives are set for three LandWatch monitoring zones. The relationship between risk management zones and monitoring zones is shown in the table below. Associated with each zone are land activities and uses Terradex would monitor, and the alert criteria that is set.  In Zone A, LandWatch would help manage risk by alerting if an excavation contractor was likely to dig in the vicinity of a liner, or alert if a new property owner purchased the property. An additional feature is the tracking of financial health, such that if property owners faced bankruptcy, a responsible party could note that their reliance on a current owner might be jeopardized.  In Zone B, a common risk management objective in commercial zones is controlling development of groundwater, and limiting sensitive uses like childcare. Terradex LandWatch would alert the risk manager in the event of drilling new water wells, when excavations occur to a depth that might encounter groundwater or when a new day care is licensed.  In Zone C, the residential zone, LandWatch can compliment a vapor intrusion management program. Terradex collects data indicating new occupants, and the risk manager can then provide appropriate advisories.  Also, by tracking building permits or excavations, Terradex can know if an project is being constructed where exposure to vaporized contaminants could occur.  Terradex can be a companion to any residential project, offering a way to oversee these sensitive use areas.

The Terradex LandWatch is ready to be deployed as a helpful companion to a risk management plan for an offsite plume.  The service is offered as a subscription dependent upon the number of zones applied and the data sources selected.  Terradex in the setup process asks for a copy of the risk management plan, and then will propose the applicable data sources and zone configuration.  Most agencies know and have comfort with the Terradex LandWatch process.

This Saline, Michigan case adds another decision to similar recent cases such as Ashley II and Robertshaw, which assess whether current owners of contaminated property met CERCLA’s Bona Fide Prospective Purchaser (BFPP) defense.  It also showcases the interesting legal question concerning the relation between BFPP requirements to (1) take reasonable steps, after acquisition, to prevent “releases” and (2) to show that, all “disposal” occurred prior to acquisition.

In Saline River Props., v. Johnson Controls, Inc., 2011 U.S. Dist. LEXIS 119516 (E.D. Mich. Oct. 17, 2011) 
a Federal District Court in Michigan considered, among other issues, whether a current owner could be liable under CERCLA for exacerbating pre-existing contamination caused by the prior owner.  The prior owner, Johnson Controls, Inc. (JCI), claimed that the current owner, Saline River Properties, LLC (Saline) could be liable under CERCLA for exacerbating existing vinyl chloride contamination by removing a building’s concrete slab and thereby “allowing additional rainwater into the ground that the building and slab might have partially diverted…”   The prior owner prevailed.

Introduction

Saline, the current owner, purchased a 22 acre parcel from JCI.  Years before, EPA issued an administrative order on Consent (AOC), which required JCI to perform various cleanup measures.  Saline sued JCI for failing to comply with the AOC but JCI counterclaimed that Saline, as the current owner, was liable under CERCLA for response costs because, JCI claimed, Saline exacerbated existing vinyl chloride contamination by removing a concrete slab that covered contaminated soil and thereby “allowing additional rainwater into the ground that the building and slab might have partially diverted…”

No Evidence Offered for BFPP Defense

Saline, as a brownfield developer, argued that it qualified as a BFPP.   As the Court here explained, to qualify as a BFPP the BFPP defense-seeker must show, by a preponderance of the evidence, each of the enumerated BFPP criteria which includes a list of “continuing obligations“, including, among many others, but as most relevant here:

• All disposal of hazardous substances occurred before the person acquired the facility, and
• After acquisition, the person seeking the defense exercised appropriate care with respect to hazardous substances found at the property by taking reasonable steps to prevent any threatened future release.

Saline, the Court explained, offered no evidence that it took any reasonable steps to prevent releases of existing contamination. Without any evidence of reasonable steps, Saline instead argued that any exacerbation it caused could not qualify as either a “release” or a “disposal” of hazardous substances because Saline didn’t actually put vinyl chloride in the ground. Rather, they argued, because the contamination already existed in place, they couldn’t have released or disposed it.

The Court disagreed, reasoning that Saline could be liable under CERCLA even if it didn’t actually put the contamination into the ground, because it took the action to remove the concrete slab which in turn, according to allegations supported by evidence, caused hazardous substances beneath the slab to migrate.

Taking Reasonable Steps to Prevent “Releases” Could Have Put the Current Owner In A Better Position To Show Post-Acquisition “Disposal” Did Not Occur

If Saline took reasonable steps to prevent “releases”, it probably would have been much better off.  Taking reasonable steps, while not the sole BFPP criteria needed to be met, is a critical element of the BFPP defense and could support the additional required showing that all “disposal” occurred prior to acquisition.

Notice, the BFPP defense requires both that (1) after acquisition, the defense-seeker took reasonable steps to prevent future threatened releases, and  (2) all disposal occurred before acquisition. 42 U.S.C. 9601(40).  This dual requirement addressing “release” and “disposal” raises interesting legal issues.

First, consider reasonable steps to prevent “releases.”  While it’s difficult to predict what a Court would find as appropriate “reasonable steps,” hypothetically in this case reasonable steps could have involved measures to prevent rain form contacting the soil and/or the timely installation of other engineering controls to act in a manner similar to the concrete pad.   ASTM’s E 2790 guides users and environmental professionals through the process of preparing a continuing obligations plan to, among other things, address site-specific threatened releases.  Further, EPA’s Common Element guidance explains that when taking reasonable steps new owners “are not expected to … undertake other response actions that would be more properly paid for by the responsible parties who caused the contamination.”

If reasonable steps were taken, new owners in positions like Saline’s could turn to the more focused (and some would say legally interesting) question of whether the reasonable steps to prevent “releases” were enough to show that no post-acquisition “disposal” occurred.

“Release” and “disposal” while defined differently, overlap.  As the Court here explained (and as other Courts explain, see e.g., Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001)) the definition of “release” is broader than “disposal” because “disposal” is included within the definition of “release” – even though both definitions have several words in common.  Disposal, the Saline Court explained (under precedent for 6th Circuit), requires “human intervention,” meaning that “disposal” doesn’t occur simply because contamination “passively migrates” but, rather, requires human intervention – such as destroying the building foundation to help cause migration.  With its broader meaning, “release” the Court explained (as have others) could possibly occur even without human intervention.

If new owners like Saline could offer evidence to show that they took reasonable steps to prevent “releases” (a broader term), they could be in a position to argue the preventative reasonable steps eliminated any “human intervention” and, therefore, prevented “disposal.”

Whether this argument would carry the day remains uncertain – no BFPP cases address whether post-acquisition “disposal” nonetheless occurred even when the BFPP-seeker exercised post-acquisition reasonable steps to prevent “releases”.   But without any evidence of having performed reasonable steps, new owners reduce their chance of showing that no post-acquistion disposal occurred and, otherwise, seem to have slim chances of successfully asserting the BFPP defense.

Extrapolating to the Case for Engineering and Institutional Controls

If the removal of a concrete pad above contaminated soil can trigger CERCLA liability because rainwater could spread contamination, it’s hardly a stretch to imagine that excavating into or failing to prevent or fix cracks in engineering controls (such as concrete or asphalt “caps”) could similarly impose CERCLA liability on new owners.  Indeed, in Ashley II, the Court cited the failure to maintain a stormwater-diverting crushed rock and gravel “ROC” cover as one factor to support its imposition of CERCLA liability upon the new owner.

Parties failing to adhere to engineering controls would potentially have the added problem of not complying with Land Use Restrictions (LURs) or impeding the effectiveness of Institutional Controls (ICs), because LURs and ICs typically accompany engineering controls – recording the requirement, for example, to maintain engineering controls in good condition or to prevent their destruction.  Failing to comply with LURs or impeding the effectiveness of ICs are also grounds to lose the BFPP defense.

ASTM’s E2790 advises users to monitor and perform field inspections of LURs and ICs for activities that could compromise engineering controls or conflict  with land use limitations. See LandWatch for Continuing Obligations for more details on the monitoring and inspection process.

Additional Information

• Ashley II v. PCS Nitrogen (current owner failed to satisfy BFPP defense)
• Imperial v. Robertshaw (current owner satisfied BFPP defense)
• USEPA Common Elements Guidance  (discussing BFPP defense and Continuing Obligations)
• ASTM E 2790 (providing guidance on Continuing Obligations)
• United States v. Honeywell Int’l, Inc., 542 F. Supp. 2d 1188, 1198-99 (E.D. Cal. 2008) (development-related excavation and grading qualifies as disposal)
• ABA Newsletter,  Ninth Circuit and Passive Migration as CERCLA “disposal” (discussing varied Circuit Court holdings on passive migration)
• LandWatch for Continuing Obligations (describing procedures and tools for monitoring and inspecting ICs, LURs, ECs, and Reasonable Steps)
• Watch What You Do With That Shovel (Or Heavy Equipment): Another Developer Faces Superfund Liability for Site Redevelopment (summarizing the Saline case)

This guidance supplements OSWER’s 2001 Comprehensive Five-Year Review guidance and provides recommendations for conducting five -year reviews for the IC component of remedies in a manner similar to the review of engineering or other remedy components.

At Terradex, we know this guidance will meaningfully inform the continually improving best practice for ICs, thereby increasing the reliability of this often necessary remedy component.  EPA’s recommendations align with numerous technology services Terradex has constructed for states and private companies including 1) use of excavation clearance systems, 2) property mapping systems to show current owner and property boundaries, and 3) integrated communication to local government where day-to-day land use decisions are made.

So what led to this new guidance?  USEPA staff  began working on this supplement around 2005,  and again the effort was galvanized in  2008.    In 2001, when the Five-Year Review guidance was issued, the primary focus of the guidance tended to be on the physical remedy components like the pumping and treatment of ground water, while ICs were often considered to be secondary in focus. If an IC was planned but not in place, for example, this situation may not have been flagged in the five-year review and evaluated as part of the ultimate protectiveness finding. The problem was that the five year review guidance did not address ICs explicitly in the 2001 guidance. Since that time, there has been an emergence of a new perspective that lift ICs to being as equal and integral to the remedy as the engineered or physical components.   The supplemental guidance provides parity with physical remedy components; the supplemental guidance offers methodologies to evaluate integrity and effectiveness of ICs in a manner similar to the physical remedy components.

The USEPA had also in November 2010 released separate interim guidance entitled  ”Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites (PIME).” The principles captured within the two guides interrelate. The PIME guidance is interim, and however must be viewed in light of the relatively extensive comments received by the agency.

The new USEPA guidance describes methods to evaluate IC integrity and effectiveness during document review, site interviews, inspections, and ultimately the generation of a protectiveness determination.  The guidance brings new rigor to IC evaluation, including: 1) assuring clarity of use restrictions and exposure pathways, 2) identifying property information, Site parcels, and mapping of these properties, and 3) adequacy of the long-term stewardship of the ICs.  And the guidance defines roles for both USEPA toward their regulatory duty, and the potentially responsible parties (PRPs) to support the protectiveness finding.

Questions A , B, and C of the Technical Assessment, which are also posited in the 2001 five-year review guidance, are now couched in terms of IC-specific situations.  Evaluating these considerations can help lead the reader to an appropriate protectiveness determination.

Recommended Questions for the Technical Assessment to Evaluate Protectiveness for a Site based on the IC component of the selected Remedy.

Through these questions and other recommendations the EPA guidance first intends to assure that ICs properly protect residual risks.  To do this, it directs that “All IC instruments should be reviewed to ensure that clear language is used to state the required use restrictions and that legal descriptions reflect current conditions at the sites (e.g. groundwater ordinance covers the entire current plume area).”  The guidance, in turn, places new demands on the monitoring and evaluation of ICs which break down as follows:

• Status of IC Implementation. Have dated copies of ICs (e.g. a proprietary control with a recorder’s mark) been obtained to confirm that each has been implemented as envisioned in the decision documents?
• Compliance with IC Obligations. Review any monitoring, reporting (e.g. recent inspection), enforcement and certification requirements to ensure compliance with and and/or use restrictions.
• Long-term Effectiveness and Enforceability of ICs. Ensure that the parties identified in the remedy decisions documents have followed through with their obligations , which included implementing, maintaing and enforcing ICs. For example, a zoning ordinance could be amended or repealed in between five-year review reports, thereby undermining its use as an effective IC.

At Terradex, we quickly noticed and felt pleased to learn that EPA’s IC evaluation recommendations match up with the type of IC compliance monitoring performed by our LandWatch Service. LandWatch evaluates the Status of IC Implementation through property map-based queries for current owners. It helps to evaluate the condition of IC instrument in our practice for clients.  In the arena of Compliance with IC Obligations, for years LandWatch has monitored land uses and activities for conflicts with ICs.  And through our more recent continuing obligations module to LandWatch provides inspection and reporting capabilities that synthesize and document field inspections along with land monitoring, ultimately providing a web-based documentation tool to support IC review.

Finally, LandWatch provides monitoring tools that bolster the reliance an agency can place on the Long-term Effectiveness and Enforceability of ICs. For example, where the snapshot nature of Five Year Reviews makes it difficult to know events during the 5-year interim, LandWatch continually works during the interim to identify activities such as zoning amendments or variances, permits, excavations, wells and other activities which, in turn, inform the “A, B, C” questions listed in the EPA guidance and ultimately protect the remedy and inform the FYR.

The ability to support IC evaluations has been emerging in new web map services Terradex has built.  Below is a screenshot from the Cleanup Deck (access is by authorization).  The Cleanup Deck can provide national mapping to property information, sensitive use information, and the regular LandWatch monitored activity and use data stream.  This Cleanup Deck supports an expedient review of IC compliance to enable protectiveness determinations.

The Cleanup Deck provides property, sensitive uses and land activity data that overlay the boundaries of Institutional Controls. The tool can support the Five Year Review process or equivalent IC integrity evaluations.

No activities that will disturb the soil at or below the pavement in the restricted Areas (e.g., excavation, grading, removal, trenching, filling, earth movement, or mining) shall be allowed on the Property without a Soil Management Plan and a Health and Safety Plan.

Managing contaminated soil can be just as or more important than other IC prohibitions yet, as our experience has shown us, without monitoring and appropriate care excavations can go forward (even with local permits) without the proper regard for IC soil management clauses.

There’s good reason for these soil management clauses.   For those on Larry Schnapf’s Environmental Issues in BusinessTransaction LinkedIn list, you’ll recall a discussion about supposed “clean fill.”   Supposed “clean fill” was actually contaminated, wreaking havoc as it was unwittingly carried away and brought to new construction areas.

In yet another example of effective IC compliance management, Terradex LandWatch recently spotted a site grading permit that had been issued for planned grading at an IC site in California.  The IC contained a soil management clause, but  the permitted grading was set to go forward without any real knowledge of the contaminated soil and with no plans to manage it as such.

Consistent with expectation, Terradex sent out a LandWatch Alert, getting “the right information to the right people at the right time,” allowing the IC’s soil management clause to be known and adhered to. The Alert showed the grading permit number, allowing the LandWatch users to quickly see how the location and details of planned grading compared to the location and provisions of the IC, including its soil management clause. As the Alert warned, a conflict existed and with the Alert in hand the various parties avoided what could have been a problematic excavation. For years, Terradex has been developing the capability of participating in the excavation clearance system.  This participation helped successfully intercept this unsafe land activity.

Of course, keeping people and the environment safe is the highest purpose served by Terradex LandWatch.  But, it also helps avoid liability and conforms with the type of good practices suggested in the ASTM Continuing Obligation Guide. Landowners who allow excavations to ignore ICs probably would be held as not complying with ICs or not taking “appropriate care” or as “disposing” contaminated soil – all reasons that could, depending on the specifics, trigger liability concerns for the landowner or even other responsible parties, earlier in the chain of ownership.

Managing contaminated soil can be just as or more important than other IC prohibitions yet, as our experience has shown us, without monitoring and appropriate care excavations can go forward (even with local permits) without the proper regard for IC soil management clauses.

As I summarized in an earlier blog post, ASTM’s Continuing Obligations Guide recommends a four step process. The primary users, in all likelihood, will be those who recently purchased contaminated property and desire to remain eligible for defenses made available in the 2002 Brownfield Amendments, namely the Bona Fide Prospective Purchaser defense, the Contiguous Property Owner defense, or the Innocent Landowner defense.   In addition to these users, however, the Guide helps other landowners of contaminated property who wish to properly manage contamination and institutional controls, even if they do not feel the need to qualify for CERCLA defenses.

At Terradex we’re delighted that BNA organized this webinar and asked us to participate.  The attention given by this and other webinars speaks volumes about the importance of this new ASTM Guide and, as webinars like this continue to get the word out, we know the Guide’s procedures will become the business norm for post-acquisition property care when institutional controls, engineering controls or other recognized environmental conditions (RECs) are present. The webinar agenda includes:

• Provide an overview of the 2002 brownfield amendments
• Discuss recent cases that have analyzed legal issues related to CERCLA’s continuing obligation requirements
• Describe the main elements of the guide, including the four principal steps set forth for users
• Talk through sample site scenarios to describe how the guide might be put to use in an actual setting
• Summarize key legal issues raised that must be considered as part of the Continuing Obligations Plan, such as passive migration, land-use restrictions, and disposal after acquisition

The long term success of Institutional Controls (ICs) and cleanup remedies is often only as strong as the financial health of new property owners.   This is why, along with its classic suite of land monitoring, Terradex LandWatch now monitors the financial health of contaminated property owners.

When new owners take over IC sites or residually contaminated sites, the old owners (a.k.a. divested owners) and regulators depend on the new owner to properly manage the property or, in ASTM parlance, perform continuing obligations.  But if new owners run out money, ICs and engineering controls can fail and other recognized environmental conditions (RECs) can wreak inadvertent health impact.  The foreclosure process can wipe out recorded “deed restrictions,” and thereby generate a regulatory conundrum for the responsible parties and regulators who relied on their durability.   Financial failure of a property owner potentially exposes even the most careful divested property managers to “comeback” liability and could trigger the need for regulators to act.  Even the best laid remedial plans can unravel when an owner enters financial distress.

Responsible parties that divested contaminated properties and the involved regulatory agencies can now rely on Terradex LandWatch to monitor the financial health of  property owners, and alert upon detecting financial distress.  Terradex combines land record monitoring (e.g., sales, foreclosures, etc.) in combination with third-party financial services to evaluate financial metrics such as suites, liens judgements, bankruptcy, deteriorating credit, and pre-foreclosure indicators (such as failure to pay property taxes).  Our third party financial service generates a financial health index, and the indexing can be calibrated by the client to trigger an alert at a specified financial health threshold. This monitoring process automatically resets when a property sale is detected – Terradex resets the service by benchmarking the financial health of the new owner, and then keeps monitoring their financial index across the subsequent owner’s term of ownership.

When LandWatch transmits a financial health alert, Terradex will remind you of the property monitored (as most divestment portfolios are large), the property owner at financial risk, and then describe the basis for the low index.  With this alert, a divestment manager, for example, can appropriately intercede or regulators can take preventative action – keeping the IC and the remedy in tact and the property safe. Terradex has the resources to dig deeper when we discover a property at risk – we can research both the financial and property status to provide the underlying details that led to the financial health alert.

A timeline of the new LandWatch service across three successive properties owners shows how an alert is issued early within the financial distress of Property Owner “B”.  The timeline shows the integrated reliance upon both financial health monitoring  and property ownership monitoring.  In this scenario, the customer is able to intervene upon early notice of financial distress of Property Owner “B” to track the bankruptcy process, and restore lost institutional controls with Property Owner “C”. All the remedy design is protected through this successful use case scenario.

With the early knowledge that a divested property owner is at risk, a responsible party can or regulatory agency can intercede to protect the integrity of engineered controls, and validate the effectiveness of institutional controls. Knowing that foreclosure could wipe out an institutional control, responsible parties or regulatory agencies could work to restore the institutional control, and thereby protect the integrity of the remedy and underlying remedy agreements.

Can you find the location of a water well in on a governmental mapping system? The answer is maybe – and it varies nationwide. A strong tension between the environmental health protection and safeguards for homeland security controls whether you will find that water well.  Environmental health protection invites for more  transparency in water well locations to aid vulnerability assessments from spill sites, while homeland security management invites hiding the well locations for fear that terrorist would know their locations to affect an assault.  How can we balance the environmental health and security threat, and determine if we have the proper policy course?  Why is there so much variance nationally?

The North Carolina mapping system as an example of where the tensions have competed, and  have limited the potential of a promising public mapping service.  The Public Water Supply Section of the North Carolina Department of Natural Resources maintains an interactive web map that shows water wells juxtaposed with contaminated sites.

Terradex’s stake in this discussion is toward maintaing the effectiveness of our duties of helping assure long term safety around contaminated sites. Greater transparency, or at least permission to view,  would facilitate Terradex’s environmental health stewardship functions by permitting a routine view of whether water wells have been installed, or shifted from dormant to active.  At Terradex, we believe the benefit to public health protection warrants reconsidering the current paradigm that favors masking well locations,  and establishing a mechanism to increase transparency to those serving to protect environmental health.

Since the terrorist attacks of September 11, 2001, the well mapping pendulum quickly shifted to favor the concern posed by terrorist threats to drinking water supply.  This led to the shutting off of convenient web-based access to water well information.  Given Terradex’s California origins, we experienced first hand the disappearance of water well locations from state mapping systems.  California’s GeoTracker displayed water wells, then in response to homeland security concerns the California Department of Public Health quickly locked down the data pertaining to occurrence and location of private and public water wells.

Terradex nationally scours state and county systems to be alert to installation of new water wells to a site with residual contamination.  Many institutional controls place a limit on development of new water wells. Terradex periodically reviews our monitored sites for new water wells, and issues an alert when recently installed wells are discovered.  Therefore we noticed the North Carolina well mapping system as a model as we fulfilled our institutional control monitoring duties, but also saw that its potential hampered by the unresolved tension between two important concerns.

Water Wells Will Always Be Vulnerable to Spill Sites

There are typically two classes of water supply wells: 1) community wells which have a relatively large service area and are typically regulated by a state agency, and 2) private water wells which are typically permitted by a county health agency.  State agencies often catalog private water wells even though the permitting duty for private wells ordinarily rests with the county agency (e.g., county health departments).

Contamination of water supply wells is a proven risk.  The seminal research of the late 1990s by Lawrence Livermore National Laboratory (LLNL)  analytically reached the conclusion that an actual threat occurs anywhere land is developed near soil and groundwater contamination and when nearby groundwater is used as a source of drinking water.

Figure 8-35 from the LLNL study models the absolute threat probability over a 100-year time span for the 30% of Leaking Underground Fuel Tanks (LUFT) sites in California where benzene may threaten to impact a well.  Potential impacts for benzene with and without ethanol are shown. The threat increases over time, and stands as a reminder for the importance of tracking water well usage.

Additionally,  Figure 8-47 from the LLNL article shows, the threat is prevalent where where population occurs and increases where reliance on  private water wells persists.Private wells typically have shallower well seals, and are more vulnerable to groundwater contamination in shallow aquifers. In metropolitan areas, the reliance shifts to community wells which typically have deeper seals and are less likely at risk.  Still, when an impact to a public well occurs, the consequences can be enormous as occurred in Santa Monica, California  in the 1990s.

The lesson from this research is that any spill site should assess vulnerability to nearby water supply wells – both community/public and private.  The threat is ongoing, especially as plumes could be destabilized by groundwater pumping and migrate toward a water well. This concern is typically embodied into institutional controls, and Terradex carries the duty for its clients to validate that wells are not developed.

Homeland security concerns, in some states, purposely limit the ability to know the location and status of water wells, both private and public.  The interest served by being cautious for homeland security could make assessing the health threats posed to water wells near spill sites difficult to do and, in turn, may increase the likelihood that contamination of these wells will occur into the future.  As such, we welcomed seeing North Carolina’s approach whereby spill sites and water wells are displayed on a common mapping platform.

North Carolina’s Water Well Mapping System Is A Model for Showing Water Well Vulnerability

The mapping system by North Carolina is representative of the potential for environmental professionals when they need to evaluate the proximity of water wells to contaminated sites.  The screenshot of the system below shows water wells mapped, as well as contaminated sites. The mapping system allows zooming to an area of interest, and selecting well types or potential contaminated sources to aid a vulnerability evaluation.

A screenshot of the North Carolina Public Water Supply Mapping system.

The North Carolina Mapping systems strength is the catalog of water wells the map maintains and the ability to juxtapose numerous categories of spill sites relative to a well locations.  This map view highlights how water wells and contaminated sites are close to each other, and therefore drinking water derived from water wells is vulnerable to contamination.

While the North Carolina mapping system offers a glimpse to the future, the well location mapping could be even better:

• Stale Water Well Data is Dated. The water well data has not been updated for approximately two years.  While water well information changes slowly, this limits the tools utility when one is looking for the occurrence of new water wells that may be unknowingly vulnerable.
• Usability Shortcomings. According to an interview with North Carolina Public Water Supply Section, poor usability issues were designed into the mapping system.  For example, there is no capability to search by address.  Additionally, the street level coverage is limited.  Ultimately, this prevents most users from finding helpful information and makes use of the tool tedious.
• Well Detail Information. When requesting information on a well through web data systems, the North Carolina data systems do not identify the well’s location.

According to North Carolina, the apparent shortcomings are intentional to satisfy homeland security concerns.  While the mapping system shows great potential, the usability concerns still hinder the site’s practical use to assess vulnerability. If you can’t find a site or consider nearby roads, how can you practically assess vulnerability?  You can’t.  With a change of priorities, the mapping system for North Carolina is well poised to become a national model of disclosure of water well information for interested parties to judge the threat of contamination to nearby  wells.

Screenshot of Mecklenburg County Water Well Information System

At the County level we have discovered additional examples of transparency of water well location information.   North Carolina at Mecklenburg County shows a mapping system with water wells juxtaposed to contaminated sites.  Dennis Tyndall with the County described how the water well information is updated each night, so the public can discover new water wells in close to real time.  The system periodically succeeds in preventing new water wells in areas of contamination.  The implementation of this mapping system began with the County passing a groundwater ordinance that demanded that the County staff evaluate all new water well permits against the presence of spill sites.  The mapping tool they generated for their internal use, was displayed in a simpler form for public use.  While at the County level, this again represents a fresh model for disclosure of water well locations.

A Challenging Tension Exists Between Environmental Health Protection and the Perceived Need to Protect Against Homeland Security Risk

So far we have established the vulnerability of the drinking water supply through spills of chemicals to land. What do we know about the threats to the drinking water supply by terrorism?   In an article “Water and Terrorism” by Dr. Peter Gleick of the Pacific Institute, Dr. Gleick consider the broad security risks to the water supply, and also delved into threats to water supplied through wells.  The article is summarized below:

“The importance of freshwater and water infrastructure to human and ecosystem health and to the smooth functioning of a commercial and industrial economy makes water and water systems targets for terrorism. The chance that terrorists will strike at water systems is real; indeed, there is a long history of such attacks. Water infrastructure can be targeted directly or water can be contaminated through the introduction of poison or disease causing agents. The damage is done by hurting people, rendering water unusable, or destroying purification and supply infrastructure. More uncertain, however, is how significant such threats are today, compared with other targets that may be subject to terrorist attack, or how effective such attacks would actually be. Analysis and historical evidence suggest that massive casualties from attacking water systems are difficult to produce, although there may be some significant exceptions. At the same time, the risk of societal disruptions, disarray, and even overreaction on the part of governments and the public from any attack, may be high.”

Within Glieck’s research, there are only a few identified events of terrorist impact  on water wells, and these terrorist events  were primitive — for example, the dumping of dead bodies into wells in Kosovo or Angola. No threats to water wells were catalogued typical of scenarios whereby a well system’s integrity is violated by a chemical reagent.  The article identifies more likely terrorist scenario such as attacking larger reservoirs or water works.

Apparently, in 2001 there was a threat to the US water supply.   Gay Porter DeNileon reports in an article titled  Critical Infrastructure Protection: The Who, What, Why, and How of Counterterrorism Issues that a threat to the US water supply was received by the FBI.  The threat proved to be a hoax, but became a basis for water agencies to observe water system vulnerability.  Mr. DeNieleon reporting seems to have highlighted an origin of the hiding of locational information regarding water wells.  He reports:

“One of the biggest issues that many water utility executives raise is the confidentiality of information, e.g., concerns that the public may have easy access to details of a vulnerability assessment under local and state Freedom of Information Act (FOIA) laws. The federal FOIA allows agencies to withhold information that “could reasonably be expected to endanger the life or physical safety of any individual,” and “geological and geophysical information and data, including maps, concerning wells” (FOIA). Also at the federal level, most sensitive data would not be available, because utilities are not required to provides such information to USEPA or any other agency at this time. A water industry ISAC and the FBI and the National Infrastructure Protection Center (NIPC – now assimilated into the US Department of Homeland Security) identified that the Infraguard program may be the answer to some of these concerns. By limiting access to, and possibly encrypting information, only those with the proper access codes or passwords will be allowed read or browse specific data. The USEPA and Association of Metropolitan Water Agencies (AWMA) are also working with the CIAO to assist municipal utilities in dealing with local and state FOIA laws. Utilities are advised, nevertheless, to have their attorneys review any plans to collect sensitive information, such as the results of vulnerability assessments, to ensure that the utility has a basis for withholding information under state and local laws.”

Though we have found possible origins of confidentiality on water wells, this policy  is not uniformly implemented nationwide.  Many states like Illinois or Texas, disclose water well information, while other large states like California do not. In a FOIA response to Terradex, California Department of Public Health identifies a rationale, but provides no direct substantiation.

Concluding Thoughts

This policy arena demands a fresh looks, and a method should be designed by which environmental professionals may find locational information with which to accomplish their mission: the protection of the drinking water supply from threats posed by nearby sources of environmental contamination.  Terradex cannot evaluate the current nature of terrorist threats,  nor would that be appropriate.  However, the literature reports no incidents that substantiate postures held by some agencies.  We recommend that states develop limited-access procedures to permit environmental professionals to obtain copies of water well maps to conduct analysis.  We know that the threats posed by contamination are credible, and there are ample tools to permit environmental professionals find the locational information to complete their health and safety duties.  While some states already do not find hiding water wells necessary, those states, like California, could use credentials to be responsive to homeland security concerns while also serving environmental health objectives.

We know this post is not exhaustive, and therefore not complete in its perspective. The inspiration for this post was the difficulty to achieve Terradex’s duty of protectiveness against barriers set by homeland security concerns.  If you have experience with mapping systems that display water wells, or with states  that have made policy changes to sway the pendulum toward further disclosure of water wells, then please share this knowledge.  We will evolve this post to share the state of water well information disclosure.

Updates

Where does the authority for masking water wells lie?  The USEPA is guided by Legislation and Directives, but these directives do not stipulate that the locations of water supply wells should be hidden.  The USEPA’s programs are informed by the Bioterrorism Act that includes protection of community drinking water systems. Again, the Act does not direct hiding water well locations.  According to USEPA, these determinations to hide water wells are a state or possibly utility determination.

We also enjoyed a well developed conversation on LinkedIn’s Environmental Issues in Business Transactions group.  We can watch this develop.

At Terradex, we found the engagement by both the Brownfield Office and the Office of Site Remediation and Enforcement integral to the building a better guide.  Already, a focus shift is underway whereby this guidance by ASTM in conjunction with policy by the agency itself will bring greater clarity in expectation for landowners as well as start setting practice norms to increase institutional control effectiveness.

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