Having All of Your Bases Covered During a Phase I Assessment

When conducting a Phase I Environmental Site Assessment for a property transaction, it’s important to understand what your client wants to do with the property. A solid grasp on their project and objectives can go a long way in identifying all environmental due diligence topics that may apply. Many people don’t realize there are Out-of-Scope topics not covered by the Phase I Assessment reporting standard, and if overlooked, they could present environmental liability issues to a prospective purchaser.  These include:


•      Wetlands – For properties undergoing development, assessment is ESSENTIAL.  Regulated federally by the Army Corp of Engineers and by IDEM in Indiana.

•      Mold – Can pose health concerns.  No state or federal regulations on mold assessment in Indiana but guidelines are in place by several trade associations.

•      Asbestos – Can pose health concerns and can be costly to abate.  Regulated by EPA federally and IDEM in Indiana.

•      Lead Paint – Can pose health concerns and might apply to any project involving painted surfaces: multi-family residential, child care, bridge repairs, and commercial structures.  Regulations vary by project.

•      Environmental Compliance – Is the business following all federal, state, and local environmental laws and regulations?  Could be relating to permitting, reporting, waste disposal, etc.

•      Air Quality – Can pose health concerns.  In addition to vapor intrusion (covered by the Phase I standard) indoor air quality from an indoor source may be a concern.  Regulations may include OSHA, but vary by source.


If you are hiring an environmental consultant to conduct due diligence investigations at a commercial or industrial property, be sure to discuss your specific needs and not assume that all topics will be covered in a Phase I Assessment report.  Communication is the key to success!


Open House Reflects Heart and Soul of EnviroForensics

It was the continuation of what has been a very exciting year in the history of EnviroForensics. Thursday night, we welcomed more than 200 people through our doors at 825 North Capitol to get an up-close look at our brand new headquarters; the culmination of more than a year’s long effort to bring new life to an old costume warehouse and transmissions garage. True to form, EnviroForensics combined the celebratory activities with an opportunity to convey an important message of environmental and human rights awareness.

The event began with an important discussion about clean water accessibility. Our partners with Water for Empowerment are working towards bringing clean water and hygienic education to women in the developing world, and tapped two like-minded individuals to speak on the subject in front of a large crowd gathered in the Community Room.

State Rep. & Candidate for Lt. Governor, Christina Hale (D) speaks at EnviroForensics and Water for Empowerment Open House
State Rep. & Candidate for Lt. Governor, Christina Hale (D) speaks at EnviroForensics and Water for Empowerment Open House

State Representative and Democratic Candidate for Lt. Governor, Christina Hale, has spent a good portion of her career in politics fighting for women’s rights. She talked about the widespread effects of water poverty, and emphasized the value of a proper education, especially for women in the developing world. The main speaker, Wateraid’s Vincent Casey, took over the discussion to detail what happens on the ground in water impoverished areas and how his group is combatting those obstacles. It’s a multi-faceted effort focused on the delivery of technology to cultivate clean water and the educational resources to achieve and maintain a healthy lifestyle long after Wateraid has left.

Wateraid's Vincent Casey presents at EnviroForensics and Water for Empowerment Open House
Wateraid’s Vincent Casey presents at EnviroForensics and Water for Empowerment Open House

Following the presentation, the building itself took center stage.  Friends, family, and colleagues passed through the halls on guided tours and impromptu jaunts; beverages and finger foods in hand as they heard the stories of the 13 Hoosier artists whose work dots the walls of the newly refurbished structure. The Community Room lived up to its name, becoming the epicenter of the celebration and serving as a space for people from all walks of life to gather in friendship, enjoy a tasty snack, and take in a slideshow of the building’s construction from start to finish. It was a night to remember, a night to cherish, and truly one that embodies the heart and soul of EnviroForensics.


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New Hazardous Waste Management Rules Are Coming Soon – Are You Ready?

Some of our drycleaning clients are in the process of, or already have transitioned away from perc solvent, but there are still plenty of functioning perc drycleaning machines currently in operation across the country.  Parts degreasers utilizing chlorinated solvents are also commonplace.  All spent chlorinated solvents have to be properly managed and disposed of in order to avoid unintentional releases to the environment.

Spent solvents are considered hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). Depending on the amount of solvents used and disposed of, the user is either classified as a Very Small Quantity Generator (“VSQG,” formerly CESQG), a Small Quantity Generator (“SQG,”) or a Large Quantity Generator (“LQG”). Most, but not all of our clients are either VSQGs or SQGs, the difference being that SQGs are required by law to report their activities and acquire a RCRA waste disposal number from their state regulatory agency.

Since its passage into law in 1980, RCRA has seen some changes; the U.S. Environmental Protection Agency (“EPA”) and industry are constantly looking to fine-tune the process of safe disposal of hazardous waste while not overly burdening the industries that generate it as a by-product of their operations. EPA’s last rulemaking affecting the hazardous waste generator regulatory program was in 2004 and addressed many of the remaining rough edges.The most recent rulemaking, which goes into effect this fall (2016), further improves the process by building in flexibility for generators who properly dispose of their waste.

How do these new rules regarding Perc this affect our clients?

  1. The new rules allow a generator, who normally falls under VSQG/CESQG or SQG status, avoid categorization as a higher status generator during a month in which they generated episodic waste, so long as they properly dispose of said waste.
  2.  They allow VSQGs to send hazardous waste to an LQG that is under the control of the same person, allowing for satellite locations of larger facilities to consolidate and dispose of waste in a more efficient manner; and
  3.  They make it easier for generators located in urban environments who find it difficult to meet the requirement that containers holding ignitable or reactive waste be placed 15 meters (50 feet) from the site’s property line by allowing generators to apply for a waiver from this requirement from their local fire department or emergency response organization.

While RCRA is not the model of legislative clarity, these most recent proposed rules from EPA look to further simplify the requirements on industries that produce hazardous waste while maintaining protection of human health and the environment. If you have questions about compliance with these new rules, EnviroForensics has professionals trained in managing hazardous materials who are on hand to assist you.

Court Decision Deals Blow to Insurers Expressing Denial of Coverage

A recent New Jersey Superior Court decision added to the growing pile of jurisdictions that recognize the insurer’s denial of a duty to their insured under the “A Potentially Responsible Party (“PRP”) letter from the regulator doesn’t trigger coverage argument” as fatally flawed.

Cooper Industries, LLC v. Employers Ins. Of Wausau a Mutual Company, et al.[i] found plaintiff Cooper Industries served with a PRP letter from the U.S. Environmental Protection Agency (“EPA”) in regards to contamination of the Passaic River in Newark. Multiple parties had been identified as potentially contributing to the 17 miles of contaminated waterway, so the EPA suggested that Cooper Industries collaborate with the other PRPs to investigate and remediate the river. They also cautioned Cooper Industries that declining to participate would end in CERCLA proceedings being brought against it. As part of its response to EPA, Cooper Industries tendered a claim to its insurer, OneBeacon Insurance Company. OneBeacon’s response was a denial of coverage, justifying it with the well-worn excuse that a PRP letter isn’t a suit and therefore doesn’t trigger coverage.

Cooper Industries filed suit against OneBeacon and the court found that not only does an EPA PRP letter function as a suit, New Jersey had recognized that for over twenty years: Morton International Inc. v. General Accident and Indemnity Company of America[ii] established that ‘the actual or threatened use of legal process to coerce payment or conduct by a policyholder’ language included in the PRP letter was sufficient to trigger coverage. EPA’s PRP letter under CERCLA certainly contains the threat of legal process, including PRPs obligation to remove and remediate contamination, CERCLA’s strict liability with very few affirmative defenses, and possibility of extensive fines and damages.

Although there are certainly legitimate exceptions to coverage, the oft-repeated contention that a PRP letter doesn’t constitute a law suit triggering coverage is slowly but surely being driven towards extinction to the benefit of policyholders nationwide. If you or your company has received an EPA PRP letter, or you feel that you may be in a position of potentially receiving one in the future, your past general liability insurance policies may be of use. The search for potentially valuable, old general liability policies is a unique part of what we offer to our clients. This court decision adds more value to our efforts to find those policies, and assist our clients through what can often times be a very difficult process.
[i] Docket No. L-9284-11
[ii] 134 N.J. 1 (1993)