Indianapolis Creates Ideal Climate for Business Headquarters

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

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

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

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

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



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

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

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

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

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

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


Contamination Cleanup—Without the Mess

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

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

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

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

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

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

Air Emissions as CERCLA Release

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

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

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

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

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

About the Author:


Justin Gifford, Esq. 
General Counsel, Compliance Manager


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

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

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

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

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

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

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


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

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

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

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

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

About the Author:

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


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

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

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

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

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