EnviroForensics Takes on Multi-Faceted Cleanup at Industrial Facility with Complicated History

EnviroForensics provides our clients with strategic solutions to complex, multi-faceted problems.  Our staff works diligently within reasonable timeframes based upon our clients’ goals; striving to avoid the bureaucratic and institutional slow-downs that very commonly plague environmental cleanups.  The owner of a now defunct manufacturing facility and property recently contacted EnviroForensics to get a cleanup of multiple contaminants started after efforts by prior teams had been stalled for over a decade.  Soil and groundwater had been contaminated by chlorinated solvents and polychlorinated biphenyls (PCBs), and the majority of the building’s interior was coated with PCB laden dust and oil.  Quick negotiations with the regulators, and our team’s specialized knowledge and experience, allowed EnviroForensics to expedite a work plan and respond quickly to the owner’s requests.

PCBs are highly toxic and do not break down easily, so the EnviroForensics staff completed a detailed assessment of the building to determine the best options for managing materials that were exposed to PCBs during historical site operations.  EnviroForensics is address the contaminated building materials in accordance with the complicated and highly prescriptive Toxic Substance Control Act (TSCA).  The owner wants to make the property a productive facility within the city again, so potential exposure to contaminants for new site workers will have to be eliminated completely.  EnviroForensics efforts at the site can help make this desire a reality.

Outside of the building, EnviroForensics continues to evaluate subsurface conditions.  Monitoring wells that were previously installed at the property had not been sampled in years.  Due to this time of inactivity, the monitoring wells needed to be reconditioned by surging the well to loosen the fine particles that accumulated in the wells’ annular space, and then purging the sediment laden water.  This “surge and purge” method restored the monitoring wells’ production rate and reliability.  The entire network also needed to be resurveyed to accurately assess contaminant migration.

With a better handle of these complex issues, the EnviroForensics team plans to finalize the investigation of the site contamination, and prepare the Remediation Work Plan that the regulators have been requesting for years.

Background Sources in Disguise

As we’ve mentioned in past blogs, one of the scariest ways for a contaminant to get into your home or business, is in the form of vapor, through the cracks in your foundation and floors (Vapor Intrusion). EnviroForensics conducts a multitude of indoor air vapor intrusion assessments each year at structures located near or over a source of subsurface contamination. These assessments help us figure out if the volatile chemical is finding its way into the structure. But they can tricky, since the same chemicals which potentially reside beneath the surface are also commonly found in household products like hobby glues, degreasers, automotive products, etc. (examples pictured below) These materials are called “background sources” and their presence can be problematic in assessing which indoor air impacts are truly coming from the subsurface rather than products already present within the building.  EnviroForensics conducts extensive background assessments and documents the materials present prior to completing indoor air testing in order to account for any materials which may contain the chemicals being investigated. These materials aren’t always present, but when they are, it is important to remove them prior to sampling in order to avoid an inconclusive data set which is not truly a representation of conditions caused by contaminant vapors entering the breathing air from the subsurface.  A traditional background assessment consists of combing through common household materials, and reading through the lists of active ingredients to confirm the lack or presence of suspect chemical compounds. But can we always trust the fine print of these products? Recently, EnviroForensics discovered that this is not the case.

During recent vapor intrusion testing activities, EnviroForensics identified a background source of tetrachloroethene (PCE) within a glue product which did not list PCE as an ingredient (I know, very tricky). This was made possible due to the fact that EnviroForensics has some of the finest professionals and modern testing equipment to identify and unmask these background sources in disguise. EnviroForensics has an in-house certified analyst trained to operate the Hazardous Air Pollutants on Site (HAPSITE) gas chromatograph/ mass spectrometer (GC/MS) instrument which analyzes air in real-time and provides laboratory-quality analytical results. Utilizing the HAPSITE instrument in the field facilitated the identification of a material containing PCE which did not have the compound listed on its label. With EnviroForensics’ efforts and the use of sophisticated testing instruments, the material was removed from the property prior to completing an indoor air assessment, therefore avoiding the collection of an inconclusive data set which would have hindered progress and over-estimated the health risk to occupants from vapor intrusion.


Common Background Sources That May be in Your Home


New Remediation Method “Mixes” Innovation with Savings

When it comes to cleaning up a contaminated site, there aren’t that many methods simpler than just removing the soil. Unfortunately, that soil has to go somewhere, and that’s where excavation can get pricy. Moving PCE contaminated soil to a specialized or “hazardous” landfill can cost hundreds of thousands of dollars. EnviroForensics’ teams are employing some new technology out in the field that is expected to take a few zeroes off the bottom line. With the implementation of a few relatively new chemicals, soil that was once considered hazardous can be brought to a regular non-hazardous landfill.

Here’s how it works. Field engineers add a mixture of water and a chemical called PersulfOx (developed by Regenesis), a white powdery substance that actually destroys volatile organic compounds (VOCs) like PCE and TCE, to the impacted soil. The PersulfOx reduces the concentration of the VOCs in the soil.  A few weeks later the EnviroForensics team returns to the site, tests the soil, then conducts another round of “Soil Mixing” as needed.  Once the soil testing reaches safe levels (of PCE and/or TCE), it can be transported to a non-hazardous regular landfill. Quicklime is then mixed in to dry out the soil for transportation and to increase and buffer the soil pH.

The cost difference between sending the contaminated soil to a hazardous landfill (also known as a Subtitle D landfill) and a “regular” non-hazardous landfill is staggering. What typically costs upwards of $500 per ton, now costs just $70 a ton, when you treat the soil, and transport it to a regular landfill. The savings on this part of the cleanup alone should be enough to keep this as a viable remediation method moving forward.

Appellate Court Ruling Favors Insured on Excess Policy Issue

The New York Appellate Court recently advised the Delaware Supreme Court on the complexities of New York insurance law on coverage allocation. In the matter of Viking Pump, Inc. & Warren Pumps LLC v. TIG, et al, TIG argued that it was only obligated to indemnify Viking Pump for the time they insured the company (Pro Rata), while Viking Pump sought coverage for the entirety of its defense (All Sums). The Delaware Supreme Court asked the New York Appellate Court to interpret its own laws in order to determine the answers to these questions: If excess insurance policies exist that have non-cumulation provisions and follow the form of underlying policies, which allocation method is appropriate? “All sums[1]” or “pro-rata[2]?” Is vertical or horizontal exhaustion[3] necessary in order to trigger this excess coverage? [AM4]

If an excess policy ‘follows form,’ it adopts, word-for-word, provisions from the underlying (primary and umbrella) coverage. The non-cumulation provision says, in effect: if your injury spans more than one policy period and an insurer other than us insured you for that period, then the amount we indemnify you for is going to be reduced by the amount your other insurer pays for the injury that occurred during their policy period. 

There was agreement from the court of Chancery all the way to the New York Appellate Court: in this case, the non-cumulation provisions in the underlying policies were clear in their intent to allocate using an all-sums method (which Liberty Mutual, the underlying insurer, customarily used).

TIG adopted the policy part-and-parcel by following form, but wanted a pro-rata approach – a legal fiction that takes an injury that occurred/continued to occur over multiple policy periods and treats it as if a discrete injury occurred in the separate policy periods. Pro-rata exists in a universe where, unless there was overlapping coverage, the injured party/insured can only recover under one policy at a time.

Non-cumulation policies, on the other hand, absolutely expect that more than one policy may be indemnifying the insured and, as a result, nullify a pro-rata approach. (A precept of contractual interpretation is that you do not interpret a provision of a contract in such a way as to nullify another provision in the contract rendering it redundant or insignificant; it’s called surplusage). In addition, several of the excess policies contained ‘continuing coverage’ provisions which expressly extend coverage past the policy period which, again, is completely incompatible with a pro-rata approach. The New York Appellate Court found for Viking Pump on the allocation question.

That left the second question to be answered. What kind of exhaustion applies to the excess policies: do the insureds need to exhaust all underlying coverage prior to triggering any excess policies (horizontal) or can the insureds simply exhaust one primary policy in order to trigger the overlying policy (vertical)? The court found that, mainly due to the fact that the excess policies’ form-following and specific identification of the underlying policies to which they provided excess coverage for meant that vertical exhaustion was the proper approach.


[1] In “all sums,” instances one insurer may be responsible for paying “all sums” related to the defense of the policyholder. After (or perhaps during) the claim, the insurer may pursue other carriers for equitable contribution.
[2] In “pro rata,” instances, an individual carrier is only responsible for paying those sums that occur while the carrier was ‘on the risk’ or insuring the policyholder while a long-tail claim (like an environmental spill) is occurring.
[3] In vertical exhaustion, excess or umbrella coverage is triggered as soon as the policy underneath it is exhausted. In horizontal exhaustion, all primary policies must be exhausted before the first excess or umbrella policy is triggered.

Soil Vapor Extraction Without all the Fuss

An environmental cleanup can be quite the undertaking, and at times, can get a little noisy. This could be troublesome if the job is in an already existing residential or business area. You don’t want to bother anyone, but you also have to clean up the hazardous chemical. Sometimes the best options for a Site remediation just don’t jibe with the surrounding area. That’s where EnviroForensics’ experience with custom remedial engineering comes into play.

A common method for pulling potentially harmful chemicals out of impacted soil is the implementation of a soil vapor extraction system (SVE). This specially designed contraption induces airflow through the pore spaces in the impacted soils, converting volatile contaminants into the vapor phase, and removing them from the soil.

Unfortunately, many “off-the-shelf” systems of this type are large, bulky, and loud, which mPic_SVE_Blogay cause complaints from nearby residents or interfere with business operations at the cleanup site.

EnviroForensics recently designed, assembled, and began operation of a custom SVE system (pictured above) at a site contaminated with tetrachloroethylene (PCE) from historical dry cleaning activities. The assignment was complex to say the least; the contamination had reached the sandstone bedrock, deep below ground surface (SVE systems aren’t normally used in bedrock applications), and the client needed a system that would be quiet, compact, and cost-effective.

EnviroForensics’ expert engineers rose to these challenges and designed a custom SVE system that not only fit within a small portion of an un-used garage in the client’s building, but also was quiet enough to hold casual conversations within feet of the operating blowers. The system is also fully automated, which allows for remote performance evaluation and adjustment without mobilizing to the Site, resulting in significant cost savings to the project.  The system built by EnviroForensics is robust yet adaptable, thereby allowing it to provide maximum contaminant removal within all portions of the variable subsurface geologic materials. The net result is an effective bedrock remediation system that is hardly noticeable to employees or the surrounding community. Within the weeks since the system was turned on, hundreds of pounds of PCE have been removed from the underlying bedrock. The regulators, the community, and our client are pleased.

Circuit Court Issues Big Victory for the Insured

A groundbreaking ruling in the environmental cleanup industry. The Ninth Circuit Court of Appeals recently issued a decision that effectively broadens the scope of protection of a policy holder by triggering an insurance company’s “duty to defend” more quickly for policy-holders living in the Ninth Circuit. In short, if the Environmental Protection Agency issues a request for information (a “104(e) letter”) regarding the release of a hazardous chemical, a property owner can go to his or her insurance companies and request that his or her insurer provide financial coverage for any legal defense needed during the regulatory process.

The facts in Ash Grove Cement Company v Liberty Mutual Insurance Company involved the EPA issuing a 104(e) letter to Ash Grove regarding contamination at the Portland Harbor Superfund Site, which is a 12-mile sediment cleanup project along the Willamette River in Portland, Oregon. Liberty Mutual denied coverage on the basis that their policy only covered “suits” and “property damage.” Luckily for Ash Grove, the circuit court found that a 104(e) letter or any other communication from the EPA that could result in a policy-holder being identified as a Potentially Responsible Party (PRP) order is considered a “suit,” under the theory that the information provided to the EPA by the insured could place them under some kind of liability. The court held that the imminent need for money to cover defense costs in court makes the letter the “functional equivalent” of a “suit.”

Moving forward, this decision is likely to have an impact in the way Superfund investigations and clean-ups are funded, particularly in the early stages. Insureds who may be Potentially Responsible Parties under CERCLA will be more inclined to come forward with information and historic records about their site, since it will be in their best interests, both environmentally and financially. They’ll also have more institutional control throughout the process, deciding costs of the investigation and cleanup with the EPA overseeing the project. The alternative is less forgiving to the insured: the EPA takes action, sends in its own crews to clean things up, and then files a lawsuit against the responsible party to recover the funds used on said cleanup. Although this decision only applies to the Ninth Circuit, it sets a strong legal precedent for courts in other circuits that have not yet decided this issue.