Why wait to address environmental contamination? Be proactive now.


Property owner with environmental contamination issue burying head in sand


There is a stigma that goes along with environmental contamination. Unfortunately, this stigma makes business owners fearful of addressing their environmental contamination. This often results in either avoiding the problem or pretending the problem doesn’t exist, but environmental contamination won’t go away on its own. Therefore, it’s important to address environmental contamination head-on.

For over ten years, I’ve spoken with hundreds of dry cleaners across the country about their environmental issues and I’ve heard every concern surrounding the topic of investigation environmental contamination and cleaning up environmental contamination. Those concerns don’t vary much across the board. If I have heard the phrase “I don’t want to open that can of worms” once, I’ve heard it a thousand times, and due to the high costs of environmental cleanups and the involvement of state regulatory agencies, it’s understandable why some might want to stick their head in the sand.

I’ve built relationships with drycleaners nationwide – some who have become clients and others who are still not ready to actively investigate the possibility of environmental contamination. I feel that it is my duty to explain why environmental agencies, consultants and engineers are not looking to put business owners or property owners in a pickle or a bind; in fact, looking into and addressing environmental issues, especially proactively, are not bad things. In fact, it’s time to consider looking at it in a new light.

Learn how to turn an environmental cleanup into good public relations for your business.

We’ve helped hundreds of dry cleaners, manufacturers, and chrome platers and metal finishers navigate their environmental concerns with little to no out-of-pocket costs to them. Our goal is to help our clients get out of a challenging situation without a large financial burden. We understand how challenging this process can be for business and property owners and have successfully helped our clients navigate through these often uncharted waters. Want to hear what our clients think? Hear from our dry cleaning clients and get an inside perspective on their environmental challenges.


We’ve had a lot of success cleaning up properties impacted with PCE and TCE, and our clients have had their own successes as well, in that they are having their environmental liabilities turned back into assets.

That is to say that their once contaminated property, which had little to no resale value, is now worth what it would be clean and unencumbered. You see, we are looking out for our clients and are the experts many have come to trust as the experts who wear the white hats. How do we do this?

  • We are the experts who help get funding in place through the use of old insurance policies so that our clients don’t face financial ruin; the experts who clean up environmental contamination to the highest standard possible and return blighted properties and businesses to their fair market value; and
  • the experts who handle every point of our clients’ environmental cleanups from start to finish on our clients’ behalves so that they are free to run their businesses, enjoy retirement, live their lives without worrying about what is around the next corner of their project.
EnviroForensics’ business concept illustrated with an infographic of a polluting industries before environmental contamination cleanup on the left side of the tree and after on the right.
By cleaning up your environmental contamination, you can turn your environmental liabilities into assets®.

My intention is not to downplay the process because there is no denying the fact that environmental cleanup is a huge deal. They are very expensive, they take a long time to complete, and they require a high level of trust between the business owner and the environmental consultant that the project will be taken care of as efficiently, professionally, and economically as possible.

Get our five tips for hiring an environmental consultant and download our interview questionnaire.

I do understand, and fully respect, the concerns of prospective clients who are frightened of taking the leap into the unknown. A proactive approach is by far the most beneficial approach for the Potentially Responsible Party and/or the business owner because they can be in control of the situation rather than being reactive to a situation like a lawsuit from their neighbor.


If you’ve read the Cleaner & Launderer column “The Environmental Corner”, you’ve read articles on a number of topics ranging from how historical insurance policies can be used to pay for cleanups to technical issues on how contamination can create vapors that can impact neighboring properties through vapor intrusion. The latter of the two topics is the key to all successful environmental cleanups and conversely, is also what usually confuses people the most.

Vapor intrusion concerns are often associated with environmental investigation and remediation projects Brownfields sites, dry cleaners, gas stations, commercial buildings, multi-unit residential, schools and large buildings. These concerns can impact public health and property values so they aren’t to be taken lightly or slowly. The earlier the vapor intrusion concern is discovered, investigated and remedied the better it’ll be for everyone involved.

To learn more about the environmental investigation and environmental cleanup process, read our 101 series: Environmental Investigations 101: Understanding PCE Contamination and Environmental Cleanup 101: Understanding what to expect during the remediation process.


Another area where business and property owners find challenges is finding the funds to pay for the environmental investigation and cleanup. Some opt to pay out-of-pocket because they don’t know there are other funding options available.

Old Commercial General Liability insurance policies, and by “old,” I mean policies that pre-date an Absolute Pollution Exclusion, which in most states is before ~1986, can pay for your environmental investigation and cleanup.

old files on shelves found during insurance archeology that can be used to pay to address environmental contamination
Learn more about how old commercial general liability policies can fund environmental investigation and remediation.

You’re probably asking yourself, “Wait, I can use my old insurance policies to pay for my environmental cleanup?”. Right now is when we can add “too good to be true” as another one of those phrases I hear so regularly, but dependent upon a few criteria it is true, and it’s why we encourage people to locate their old policies and store them in a fireproof storage box. There is a service for locating lost insurance policies, called Insurance Archeology if you are in need of assistance in finding yours.

I do stress that a proactive approach to all things environmental is truly the most beneficial way to go, for any business or property owner with a possible environmental liability on their hands. Waiting for someone to discover your contamination and pin it on you is a recipe for disaster, and anyone who has been in that position, which is becoming a more and more common occurrence, will tell you that it is not a pleasant one to be in.

Understand the difference between proactive or reactive when dealing with environmental contamination.

If you are ill-prepared when an environmental issue is placed in your lap, it could mean thousands of dollars, in some instances, tens of thousands, of out-of-pocket costs. A proactive approach means that you are in command of the situation and by being in front of the issue, you will save yourself a lot of stress and money. Don’t leave environmental contamination for your family and loved ones, or even strangers, to deal with.

Consult with us, it’s free and it’s confidential.

Headshot of Dru ShieldsDru Carlisle, Director of Drycleaner Accounts
For over 10 years, Dru has helped numerous business and property owners facing regulatory action, navigate and manage their environmental liability. Dru has vast experience in assisting dry cleaners in securing funding for their environmental cleanups through historical insurance policies. Dru is a member of numerous drycleaning associations in addition to serving on the Midwest Drycleaning and Laundry Institute (MWDLI) advisory council and on the Drycleaning & Laundry Institute Board (DLI) as an Allied Trade District Committee Member.

Environmental Cleanup Can Be Good Public Relations for Your Dry Cleaner

Let’s say you’ve found solvent contamination at your dry cleaning facility and its impacted groundwater, soil and/or adjacent property. You are probably thinking, not only is it costly to address the contamination but it could also ruin my good business reputation.

Have you ever thought that cleaning up environmental contamination could be good public relations? It can, and it’s a matter of sharing the right message with your audience.

What does your situation look like?

Dry cleaners have to be careful in how they address their contamination issue. Most dry cleaner’s biggest concern is if they conduct an environmental investigation that they’ll discover their neighbor’s property has contamination on it, or that vapor intrusion is going into their neighbor’s home or business and their neighbors will sue them. While that may be a possibility, that’s not typically how it happens. When the environmental contamination issue arises, it almost always happens in reverse. A lawsuit is filed by a party or group of people against all of the parties that have owned the property or business where contamination is allegedly emanating from. It is rare that a dry cleaner conducts a cleanup and are then being sued. Typically, a real estate transaction of a neighboring business initiates the lawsuit against the former and current owners of the dry cleaning business and/or property. This means that proactively conducting an environmental investigation will lead to addressing environmental contamination on your timeframe instead of someone else’s. By the way, while PERC, a dry cleaning solvent, is considered a known carcinogen, it is generally very difficult to attribute a person’s adverse health condition to PERC exposure. For example, if someone that has cancer was exposed to PERC they have likely been exposed to other chemicals that are also carcinogenic; making the direct link between the alleged PERC exposure and the health effect more difficult to legally prove. Out of the hundreds of environmental investigations that I’ve been involved with, only a handful of sites received significant public attention. Most people, unlike dry cleaners, just don’t deal with environmental contamination as part of their daily life. For example, most people don’t think that their neighborhood gas station is involved with an environmental cleanup, but almost every gas station has been or is being cleaned up for a carcinogenic chemical called benzene. So, if nobody asks any questions about the investigation, you don’t have to volunteer any answers. However, this doesn’t mean that you shouldn’t be prepared with a public relations plan.

What should you do if you need to make a public statement?

If you find yourself needing to respond to public relation inquiries or questions, you need a positive message and you need to bring your employees on board with that message. You’ll also need to acknowledge that past dry cleaning practices were different than they are today. It’s true that in the old days most people didn’t even think PERC was harmful to people or the environment, and spent filters may have been placed in trash bins, or spills may have been washed into the sewer or storm drain–don’t go into detail about the old practices. Instead acknowledge old practices and let them know what you’re doing to address the issue. You want to give them a warm feeling about you.

Make An Honest Statement

Depending on where you are at in the environmental process, an example message could be: “In the past, PERC was not considered harmful and older machines weren’t really designed to be as protective of the environment as they are today. We are taking the necessary measures to investigate the potential contamination and will be proactive in addressing the situation.” If you’ve conducted an environmental investigation that confirms PERC contamination, go on to tell them that a small amount of PERC was found in the soil and/or groundwater and that you are working with the regulatory agency to make sure there are no impacts to people or the environment. If you know you are going to conduct environmental remediation, state that you are working with the regulatory agency to restore the soil and/or groundwater to levels that protect people and the environment. You may want to enroll the assistance of your regulatory agency project manager. Most regulatory agency staff understand the hardships that small business owners face when dealing with environmental investigations and will gladly work with you to present complicated technical issues in a down to earth and unthreatening manner.

Learn how Mercury Cleaners shared their environmental cleanup with their customers.

Create A Fact Sheet

In some states, a fact sheet may be required to be sent to all residents living within a given area of your property. It is best if you can be involved with the creation of the fact sheet language. The fact sheet should have the following information:

  1. A discussion about the contamination and what is known;
  2. A description of planned work and technical reports;
  3. Contact information for you, your consultant and the regulatory agency representative;
  4. Where reports can be found about the site; and
  5. A location map identifying the site and the surrounding neighborhood.

In addition, the fact sheet should be published by the agency or be put on the agency’s letterhead to show that it came from an official source. Your employees should also be briefed and told to direct any questions to you. It would be a good idea to have copies of the fact sheet at your place of business in case your customers are curious. As your investigation progresses, the fact sheet should be updated and highlight the progress made to solve the problem along with the future work schedule for cleanup of the contamination.

An Example of a Dry Cleaner Being Proactive

Dry cleaners could make a really big splash by inviting the media to cover the story. One of EnviroForensics’ clients was very high profile and is a success story of a dry cleaner who turned their environmental cleanup into good PR.

The dry cleaner invited a newspaper to cover the environmental remediation of his property. A journalist showed up with a photographer and wrote about the progress that was being made to clean up the contamination and the article came out in the Sunday paper as a lead story. The dry cleaner didn’t lose any business because of the contamination, has no threats of lawsuits, and sleeps really well at night. The dry cleaner chose to be proactive instead of reactive and shared the right message of restoring the environment with their customers and the public.

This news story gave the dry cleaner a proactive stance and showed the positive contributions the dry cleaner made by restoring the environment.

Contact EnviroForensics to take control of your public relations and be proactive step with your environmental investigation.

As seen in Cleaner & Launderer

Stephen Henshaw, CEO at EnviroForensics & PolicyFind has over 30+ years of experience and holds professional registrations in numerous states. Henshaw serves as a client manager and technical manager on complex projects involving contaminated and derelict properties, creative litigation, deceased landowners, tax liens, non-performing banknotes, resurrecting defunct companies and cost recovery. Henshaw’s expertise includes a comprehensive understanding of past and current industry and waste handling practices and the fate and transport of chlorinated solvents in soil and groundwater. He has served as a testifying expert for plaintiffs and defendants on high profile cases involving causation and timing of releases, contaminant dispersion, allocation, damages, past costs, and closure estimates. He has a strong knowledge of state and federal regulations, insurance law, RCRA, and CERCLA. He has managed several hundred projects including landfills, solvent and petroleum refineries, foundries, metal plating shops, food processors, dry cleaners, wood treating facilities, chemical distribution facilities, aerospace manufacturing facilities, and transporters and provides strategy instrumental in funding projects and moving them to closure.

My insurance carrier appointed an attorney for my environmental investigation–Is that good or bad?

It’s important to understand your rights and exercise them when it comes to your insurance coverage. The decisions made during an environmental investigation will impact your future business, finances, and even your reputation. Be sure your defense against a claim serves you.

What I want to tell you about today are the obligations that your insurance carriers have when they defend a claim under Reservation of Rights (ROR). I want to tell you this because there is a lot of misinformation that people have on this issue and policyholders have rights that they need to know. When people don’t know their rights, decisions can be made that could adversely affect their businesses, their financial future, and even their reputation.

What you need to know about insurance carriers and how they operate

  1. The most important thing to understand about what I am telling you is that managing insurance claims is a big business and the less that insurance companies pay out in losses and damages, the better the financial statement for that insurance company will look.
  2. The second most important thing to understand is that the person handling your claim may be your friend but probably is not. The claim handler has a job to do and they are oftentimes evaluated and rewarded on, among other things, metrics associated with how much your claim costs in comparison to “similar” claims.
  3. Additionally, most insurance carriers do not have separate environmental claim departments. Instead, the claim handler dealing with a complex environmental claim could also be handling claims associated with theft, automobile accidents, home fires, hail, and wind damage, the list goes on. Point being, they may not be very sophisticated in terms of understanding your environmental claim. Knowing these basic facts will help you better understand the insurance claim process and why investigating and cleaning up environmental problems can take an inordinately long time and can be surprisingly contentious along the way.
  4. The next thing that will be helpful for you to understand is different states interpret insurance policies and the obligations of an insurer differently. Couple the nuances from state to state with an unsophisticated claims handler and you have a recipe for confusion. In turn, confusion can lead to a project stalling, by slowing down the environmental investigation, creating unnecessary legal arguments, obfuscating the facts of the matter, requesting extensions from the regulatory agencies, not paying consulting and legal bills timely, and adding more layers such as hiring consultants to oversee consultants.

Like most people, claims handlers address easier tasks before the harder more confusing tasks and it is not uncommon for a claim handler to have as many as 125 to 175 claims in their file. There might be one or two claims that are easier than yours. But remember, as an insured, you have rights, and one of those rights is to have a defense against your claim and such a defense must serve you.

What you need to know about your insurance coverage: You have the right to select your own lawyer and typically your own consultant

Understanding your rights as an insured will benefit you in several ways. As an insured one of the rights you have is the right to select your own lawyers and typically your own environmental consultant. To put this in context, the attorney defending your claim works for you and not your insurance carrier. The insurance carrier must pay for the defense of the claim. Within reason, the “duty to defend” by an insurance carrier includes paying for your legal defense and includes assessing and determining your liability and exposure. The only way to understand your liability and exposure is to collect enough data to determine the extent and magnitude of the problem and to determine the cost of the cleanup. One of the areas where I see problems is when the insurance carriers select or appoint a lawyer to defend a policyholder. Another area is when an insurance carrier selects a consultant to oversee the consultant that you have selected to conduct the environmental investigation.

You need to know and trust your attorney

In the former, you have to understand who employs your attorney. When an insurance company retains a lawyer to “represent” you on your claim, this is referred to as a tripartite relationship. A tripartite relationship refers to the relationship among an insurer, it’s insured, and defense counsel retained by the insurer to defend the insured against third-party claims. This relationship can present actual or potential conflicts between the insurer and the insured, placing defense counsel in a difficult, and often confusing, positions.

There are all kinds of ways in which an attorney representing you, but retained by the insurance carrier on your behalf can have conflicts of interest. In fact, it is a very slippery slope for attorneys to represent you on your claim while having an ongoing relationship with your carrier.

From the most basic business fact, an attorney representing you but retained by the carrier implies that the attorney has an ongoing book of business with that carrier. In other words, they get work from the insurance carriers as their basic book of business. The attorney solicits and is retained by insurance carriers because the insurance carriers like the results that they get for them. Your attorney has to, by law, represent you, but practically speaking they cannot afford to upset their ongoing book of business, so fighting for your specific needs is generally tempered or moderated. With respect to specific conflicts of interests, the legal world is chalked full of examples where conflicts arise under the circumstances where the carriers select and appoint your defense counsel.

I have worked numerous projects where the insurance carriers have hired and retained defense counsel and more often than not the results for my clients, the policyholder, are not very favorable.

Make sure your assigned environmental consultant works for you and not your insurance carrier

With respect to other tactics designed to control defense costs, carriers employ consultants to oversee your environmental consultant. In principle, it is understandable that a claim handler with little sophistication would hire oversight consultants. They will use these consultants to review work scopes and invoices with the intention of saving money. The problem is that in order to save money, the oversight consultant often times will determine that reasonable work is unnecessary or that work is not necessary because the regulatory agency did not specifically request a certain task. You need to understand that regulatory closure does not necessarily equate a clean property. If a property is not cleaned up to at least commercial standards then your property value has not been restored.

You need to make financially sound environmental remediation decisions. Therefore, you must understand the difference between regulatory closure and environmental cleanup. For more information, read How Clean is Clean Enough? Regulatory Closure vs. Environmental Cleanup

The field of environmental investigations is very mature and most consultants understand that a groundwater plume must be delineated vertically (in-depth) and horizontally (in length). Data must be collected to determine whether the contamination is causing harm to human health or the environment. Remediation should consist of abating the problem, protecting the public health and restoring the value of the impaired property.

Oversight consultants try to show their value by reducing the amount of work necessary to achieve the answers to those questions. Usually, the work will be necessary, but the oversight consultants drag out the investigation process unnecessarily to show that they are saving the insurer money. They will reduce the work scopes by cutting back on a monitoring well here or there or reducing the number of samples being collected. The result is a long back and forth process between your consultant and the regulatory agency that ends up taking many years instead of several months.

The other area we typically see is that the oversight consultant only wants to conduct work that is specifically asked for by the regulatory agency. The problem is that the project manager for the regulatory agency has dozens and dozens of files. They may miss a component of work not included in a work scope during a particular review, but before the site is closed they will require the work to be completed before they will close the site and issue a no further action letter (NFA). Again, the back and forth results in a very long claim management process that could have been completed in a much shorter time were it not for the oversight consultant.

Finally, oversight consultants are in business to show their value and many try to show their value by ”saving” money and that means they pick apart reasonable invoices, suggesting that the work was excessive, conducted at too high a rate, or that they need more information to justify the invoice. These tactics are designed to present a short-term picture of saving money. In reality, the work needs to be conducted and is conducted, but over a much longer period of time.

Know your rights and protect yourself from future liability

It’s imperative you understand your rights in order to make the best decisions pertaining to selecting the best legal counsel and that attorney providing the best legal defense for you.

The best thing that you can do is to understand your rights. Understand that you need and you have a right to select your own counsel to represent you against the claims.

Understand that you probably have the right to select your own environmental consultant and find a consultant that will be strong enough to understand what needs to be done and how to get it done in a timely manner. Your consultant needs to be able to go toe to toe with the oversight consultant if that is what it takes to defend your claim in a timely manner.

Dealing with environmental contamination is a lengthy process by the very nature of removing chemicals from soil, vapor, and groundwater. You do not want it to take longer than necessary, because your claim handler is evaluated on how much was spent on your claim or the insurance carriers are more interested in their company financials than on providing you with the best defense against your claim.

Whether you want to use old insurance policies to pay for your environmental cleanup fees or just want to ask us questions, contact us today for a confidential consultation.


Stephen Henshaw, CEO at EnviroForensics & PolicyFind has over 30+ years of experience and holds professional registrations in numerous states. Henshaw serves as a client manager and technical manager on complex projects involving contaminated and derelict properties, creative litigation, deceased landowners, tax liens, non-performing banknotes, resurrecting defunct companies and cost recovery. Henshaw’s expertise includes a comprehensive understanding of past and current industry and waste handling practices and the fate and transport of chlorinated solvents in soil and groundwater. He has served as a testifying expert for plaintiffs and defendants on high profile cases involving causation and timing of releases, contaminant dispersion, allocation, damages, past costs, and closure estimates. He has a strong knowledge of state and federal regulations, insurance law, RCRA, and CERCLA. He has managed several hundred projects including landfills, solvent and petroleum refineries, foundries, metal plating shops, food processors, dry cleaners, wood treating facilities, chemical distribution facilities, aerospace manufacturing facilities, and transporters and provides strategy instrumental in funding projects and moving them to closure.

Did the EPA just end the era of PCE drycleaners?

The United States Environmental Protection Agency (EPA) has announced a proposal that would bring about sweeping changes to the drycleaning industry. The measure is a ban on the chlorinated solvent trichloroethylene (TCE) being used as an aerosol degrEPA Logoeaser and as a spotting agent in the drycleaning process. This major announcement was the first of its kind following this year’s revisions to the Toxic Substances Control Act (TSCA). Only two weeks ago, the EPA released their list of the first ten chemicals to be assessed under TSCA reform. Not only did the list include TCE, but also tetrachloroethylene (PCE), which is another one of the most commonly used drycleaning chemical.

While TCE is used mainly as a pretreatment spot removing chemical in small volumes, PCE is used as a primary solvent in which textiles are completely immersed during drycleaning. Those in the fabric care industry commonly refer to PCE as Perc. Not all drycleaners use Perc as their primary solvent, but many at least still use TCE for spot removal. If the EPA follows suit and proposes a nationwide ban on the use of PCE, many Perc drycleaners could be in serious jeopardy of losing their business, not just scrambling for a replacement spot remover. The cost to convert a Perc drycleaning operation to one of the other available solvents can be cost-prohibitive for small business owners.

The use of Perc has been losing favor slowly over time, especially on the West Coast, as new toxicological data continue to show that exposure to PCE is probably linked to an increase in risk of cancer. California enacted law in 2007 that requires all Perc drycleaning to be phased out by 2023. Historical (usually pre-EPA) drycleaning practices have also resulted in an overabundance of environmental releases to soil and groundwater, which are very costly to clean up, result in a great deal of legal risk to the responsible parties, and cause exposure concerns. The fallout for drycleaners has included diminishing clientele, difficulties getting funding for upgrades to operations, loss of rental leases, and depressed property values.

The amended TSCA requires EPA to publish the entire list of ten chemicals in the Federal Register by December 19, 2016. At that time, it will trigger a statutory deadline will be established to complete risk evaluations for these chemicals within three years. If it is determined that one of the chemicals presents an unreasonable risk to human health or the environment, EPA has only two years to address the risk. Scoping documents for each chemical will be released by the EPA within six months, which should provide more details.

In essence, the EPA may have just brought the balance of the nation up to speed with California’s Perc phase-out date of 2023. That gives Perc drycleaners precious little time to devise an action plan on how to continue operating their businesses beyond the first quarter of the 21st Century, or alternatively, to get their business exit strategy finalized.

Published: December 15, 2016

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)

U.S. District Court Adds to Kiger Progeny

In a recent legal decision that reinforces existing case law in Indiana, Judge Jon E. DeGuilio of the U.S. District Court for the Northern District of Indiana (Hammond Division) ruled in favor of a policy holder in an environmental contamination coverage dispute.

Old Republic Insurance Company v. Gary/Chicago International Airport Authority (No. 2:15-CV-281-JD) saw Old Republic seeking declaratory relief and reimbursement from the Airport Authority for defense costs expended in defending the Airport Authority against IDEM’s claims for investigation and cleanup of fifty-two separate different contaminants.

Old Republic argued that its non-specific pollution exclusion (which read “This policy does not cover claims directly or indirectly occasioned by, happening through or in consequence of:…(b) pollution and contamination of any kind whatsoever,” was distinguishable from language Indiana courts had previously identified as ambiguous (under Indiana law, which interprets insurance contracts as it would any other, ambiguity in coverage exclusions must be interpreted in a way that finds for coverage).

Although different than the absolute pollution exclusion by means of excluding “pollution” and “contamination” rather than the language found in American States v. Kiger 662 N.E.2d 945 (Ind. 1996) and its progeny, “pollutants and contaminants,” the district court was not convinced that the minor modification of the language was sufficient to overcome the Indiana Supreme Court’s approach. In the view of the Indiana Supreme Court, in the event that an insurer wishes to exclude coverage, it must specifically exclude the substances for which it would negate coverage; a moderate change of broad exclusionary language is insufficient to resolve the ambiguity Kiger and its progeny identified and held against its drafters.

Although Indiana is unique in the stringency of its courts’ identification of ambiguity in commercial general liability insurance contracts, this most recent decision simply adds another layer to the stratifying case law requiring insurance contracts to specifically identify hazards against which they will not insure.

Legal Community, Utilities Await Ruling on Virginia Coal Ash Case

Environmentalists want utilities to move coal ash waste from sites like this one along the James River in Virginia, to safer, leech-proof landfills.
Environmentalists want utilities to move coal ash waste from sites like this one along the James River in Virginia, to safer, leech-proof landfills. Courtesy: Nick Kotula

The Clean Water Act was signed into law to maintain and protect our country’s waters, but there has never been an interpretation of the law that says it applies to groundwater, too. That is, until now. A judge in Virginia is expected to make a decision that could have widespread impact on the way utilities dispose of their coal ash after power production. Legal experts say it’s the first case of its kind to go to trial, and based on the judge’s decision, it could mean either dirtier rivers or higher electric bills in the future.

One of Dominion Virginia’s coal ash disposal sites is located along the Elizabeth River in southeast Virginia. Environmentalists assert the heavy metal-laced coal ash is leeching into the groundwater below the ash pond and finding its way into the river. The Southern Environmental Law Center filed a lawsuit against Dominion, alleging the utility was in violation of the Clean Water Act, and should be forced to move its coal ash deposits to a dry and lined facility away from waterways. Legal experts, power utilities, and environmental consultants around the country will be tuning in when the judge makes his decision, because it would provide the first precedent relating to the 2014 amendments to the Clean Water Rule as they pertain to groundwater.

Utilities like Dominion Virginia argue water-proof caps ,like the one pictured here being used on one of the coal ash basins near the Elizabeth River, provide the same benefits as excavation. Courtesy:AP
Utilities like Dominion Virginia argue water-proof caps ,like the one pictured here being used on one of the coal ash basins near the Elizabeth River, provide the same benefits as excavation. Courtesy:AP

Environmentalists and power companies have been debating over how to dispose coal ash for years. Environmental groups want the waste that’s currently stored near waterways to be transported to safer, leech-proof facilities, a process that a coal industry trade group indicated would cost more than a trillion dollars, and in all likelihood would increase the price of electricity service. Utilities advocate capping the already existing sites with rain proof liners, saying that would be a more fiscally pragmatic way to protect water quality, although they provide no solution for ash pond collapses like the 2014 collapse in North Carolina that resulted in millions of dollars of environmental damage. Even so, there were concerns over the impact of these possible contaminations. During arguments in the Dominion Virginia Case, there were conflicting reports on just how much arsenic from the coal ash had found its way into surface water, and if it was truly enough to pose a danger to human health. With this in mind, the presiding judge questioned the validity of spending hundreds of millions of dollars to fix the problem.

The judge has not yet said how long it will take him to rule on this case. Whichever way he rules, legal experts say the decision is likely to be appealed, and might even be brought in front of the United States Supreme Court. Environmentalists are already claiming victory, saying they hope the amount of attention put on Dominion will influence other utilities to consider changing their coal ash disposal practices.

Environmentalists argue rain-proof caps do not provide a solution to coal ash pond collapses like this one that happened along the Dan River in Virginia back in 2014. Courtesy: The Center for Energy, Environment, And Sustainability
Environmentalists argue rain-proof caps do not provide a solution to coal ash pond collapses like this one that happened along the Dan River in Virginia back in 2014. Courtesy: The Center for Energy, Environment, And Sustainability

When this case reaches its ultimate disposition, it is likely to have a significant impact not only on the storage and transport of coal ash, but the breadth of the ‘waters of the United States’ language from the Clean Water Rule, impacting not just arsenic, but the full breadth of hazardous substances and the U.S. EPA’s authority to regulate their cleanup. Considering that EnviroForensics’ day to day expertise deals heavily with the cleanup of groundwater, we will certainly be watching the case closely. An opinion finding that groundwater is not a part of the Waters of the United States under the new Clean Water Rule could conceivably render the regulatory framework that keeps our well-derived water clean ineffectual until new rules in line with the court’s decision could be drafted. Either way, a decision is forthcoming, and we will keep you posted on it when it happens.  Stay tuned!

Eliminating Background Sources of Vapor Contamination at Active Dry Cleaners

Vapor intrusion continues to be one of the most common exposure pathways that we investigate in our work at EnviroForensics.  We’ve mentioned in past blogs that many household and commercial products can serve as background sources of contamination in indoor air, making it difficult to determine how much contamination is truly due to vapor intrusion from the subsurface.  The presence of background sources is likely to increase concentrations of contaminants in indoor air samples if they are not eliminated prior to sampling and this bias may misrepresent indoor air as it relates to vapor intrusion.  Therefore, elimination of background sources is necessary to obtain a true measurement of indoor air quality related to vapor intrusion.

But what about cleaning products and emissions at an active dry cleaning businesses?  Dry cleaning emissions are also considered a background source that can contribute to indoor air conditions, but removing them is not as easy as simply moving a bottle of cleaning supplies out of the building before samples are collected.  IDEM recently required indoor air sampling in each tenant space at a strip mall where one of our clients owns a coin operated laundromat and actively performs dry cleaning with PCE and TCE. The EnviroForensics team had to go the extra mile to make sure background sources were eliminated as best as possible before collecting the air samples.

After assessing the strip mall’s basic construction and configuration to gather information pertaining to air circulation, we determined that the best approach was to physically remove as many cleaning materials containing PCE or TCE as possible and then complete a fresh air exchange in each tenant space at least 48 hours before sampling.  We worked with our client to determine a period of time when his business could continue to operate but cease dry cleaning for approximately three (3) days.  Cleaning products that could easily be removed were taken out of the building, but materials were not drained from the dry cleaning machine and dry cleaned clothes were wrapped in plastic and left in place.

After coordinating with the other businesses in the strip mall, a fresh air exchange was conducted in each tenant space using a ventilation fan to draw air from inside the building to the outside, allowing fresh air to flow in.  When the air exchange was complete, the EnviroForensics team waited 48 hours before collecting indoor air samples inside each tenant space.  In doing so, the project team able to satisfy the IDEM requirement for vapor intrusion assessments, making sure that the samples collected were truly representative of vapor intrusion from subsurface conditions.

EnviroForensics continues to think outside the box to identify viable solutions that will minimize the burden on our client’s ability to run their business while addressing their environmental liabilities.

New VRP Guidelines Aim to Put More Projects in Motion

The Indiana Department of Environmental Management is hoping some changes to the Voluntary Remediation Agreements participants in its Voluntary Remediation Program (VRP) execute in order to join the VRP will get projects that have stalled for years off the ground. A recent report from an Indianapolis news station indicated hundreds of sites participating in the VRP have gone unchecked for years, insinuating that the responsible parties (RPs) had been using the VRP as a loophole to delay cleanup while not having to face the legal ramifications of their inaction. In contrast to the State Cleanup program, the VRP offers its participants protection against future IDEM liability with a covenant not to sue at the completion of the cleanup. The new guidelines offer a more detailed set of benchmarks and deadlines in order to root out this problem.

Under the old guidelines, if an RP wanted to take part in the VRP, it had to have its chemical plume well-defined. The new requirements allow for a 2-year window for the plume to be fully characterized and investigated after signing the Voluntary Remediation Agreement (VRA). The IDEM’s new deadline for investigation and site characterization should force RPs to address their environmental issues or lose the protections against liability that the VRP provides in contrast to the State Cleanup program.

Also, a new, clear deadline has been set for the development and submission of a Remedial Work Plan (RWP). A responsible party and its environmental consultant have 180 days to conduct their initial and further site investigations and come up with a RWP to put into action. If they don’t comply with this deadline, the responsible party runs the risk of being taken out of the VRP, opening them up to possible lawsuits. However, the updated rules are not completely inflexible: once an RWP has been submitted, stakeholders and VRP project managers are given a little more leeway. Deadlines will be determined on a case-by-case basis.

For years, companies responsible for hazardous chemical contaminations have hid behind and took advantage of a program that’s number one priority is to protect human health and cleanup contamination while offering a layer of protection to its participants. The hope is with these new modifications to the VRAs, the prior inaction by VRP participants should be prevented from happening.



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.