Phase I ESA Quirks Volume II: Stained Concrete

To continue with our Phase I Environmental Site Assessment (ESA) “Quirk” series, let’s take a quick look at a common issue that is often overlooked or under-valued: Stained Concrete. Similar to our previous post (Phase I ESA Quirks Volume I: Historic Deeds), many times when conducting Phase I ESAs or Preliminary Assessments (New Jersey) you encounter interesting bits of information, or scenarios, but how you interpret and utilize it can significantly impact your project, including that small concrete stain that appears insignificant.

Generally when conducting due diligence you encounter stained concrete.  It’s fairly common, and could be in an auto repair shop, manufacturing facility, or any number of other facilities with varying uses. Usually the occasional small spill that is cleaned up rather quickly, could fall under a de minimis category, or an Environmental Professional (EP) may deem it a Recognized Environmental Concern (REC) depending on the severity.  In either situation, this should prompt the investigator to the next round of questions (or considerations) including:

 How did it get there?

What caused the stain?

How large of an area is stained?

Duration?

Condition of the concrete?

The ultimate goal is to ascertain the likelihood of the contents of that stain or spill getting to the subsurface soils (or groundwater), but take into consideration the goals of your client, especially the future end use(s) and whether that stained concrete will be removed as part of a site’s redevelopment.  This doesn’t necessarily mean you need to recommend an elaborate Phase II investigation; however, you also shouldn’t assume that the stain is insignificant.  Many inexperienced professionals (or experienced individuals for that matter) tend to overlook that fact that concrete is porous, which could be costly in some circumstances.   It may be in great condition, but even small spills that occur over a long period of time should be given close consideration.  Similarly, the complications of testing, handling, and disposing of PCB-impacted concrete (for example) could have drastic effects on a project’s cost and schedule.

Along with the above, and possibly more concerning are the brand new concrete floors or floors with that nice and shiny epoxy coat: Why were they repaired or replaced? What happened at those locations previously?

All of the above questions are those that need to be answered regardless of the due diligence platform if one is to provide true value to their client. Know where to look, who to ask, and don’t fall into the “Concrete is in good condition, no additional investigation necessary” trap.  Taking a deeper look usually isn’t that difficult, and you’ll thank yourself later if you were able to discover an issue early in the process.

Stay tuned for future Phase I ESA tips and tidbits in the upcoming weeks…as there are plenty of lessons and unique observations to be shared, which could ultimately make our jobs easier!  

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information, or for assistance on your next project, please don't hesitate to contact us at tfrancis@cardinallsrp.com, or www.cardinalLSRP.com.

N.J.A.C. 7:26I- SRPLB Rule Adoption Review- Volume II: OPRA Requests

On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register.  The effective date is January 4th, 2016 / expiration date is January 4th, 2023.  This is the second part of this series where we continue to look at some of the changes, and look at the public comments / questions and Board responses...and try to "simplify" what they mean.  For this post, OPRA requests and LSRP's "records" are reviewed: 

General Comments: 

9. COMMENT: The commenter expresses concern with how the public will access the data and records an LSRP holds related to ongoing remediation, and whether such data and records are subject to the Open Public Records Act, as well as when an LSRP should release such data and records. Of particular concern to the commenter is how data and records can be accessed when conducting due diligence in property transactions, for example, pursuant to the "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process," ASTM E1527-13, which provides guidance for compliance with the U.S. Environmental Protection Agency's "all appropriate inquiry" rule. (7)

RESPONSE: An LSRP's data and records are not "public records" as defined in the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. As a result, an LSRP has no obligation under OPRA to provide the public with access to his or her records. An OPRA request for such records is available after the LSRP has submitted them to the Department along with a response action outcome. Until that time, the person interested in such records will have to contact either the LSRP or the person responsible for conducting the remediation to gain access to those records.

What does that really mean?  To simplify the matter...only documents that are submitted by the LSRP to the NJDEP (e.g. Preliminary Assessment Reports, Remedial Action Reports, etc.) are public documents that can be obtained through an Open Public Records Act (OPRA) request.  Although this is a fair response, the difficulties will be realized when an Environmental Professional (EP) conducting a Phase I ESA attempts to obtain information from an on-going or incomplete investigation, where reports were not yet submitted to the NJDEP.  It is estimated that an EP may attempt to obtain the information from the LSRP or Responsible Party but the likelihood of that information being shared would potentially be low and/or difficult to obtain. Most RP's are concerned about the unwarranted or unauthorized dissemination of confidential information, so their reluctance is understandable.  Conversely, the opposite could be true for certain property transactions where a seller may disclose all information to a potential buyer (and EP) prior to closing a sale and/or submitting reports to the NJDEP. 

That's the easy explanation as to what one could expect.  It's a little more complicated though when conducting due diligence and you are unable to obtain what may be identified as critical information.  Using current ASTM standards, this could be classified as a significant data gap and your Phase I ESA report could still be issued; however, in New Jersey, when conducting a Preliminary Assessment, this lack of information could be vital...and costly if the issuance of the report is delayed. The costs would continue to increase (significantly) if an investigation would need to be completely re-done due to the Site's report(s) not being public records, and an RP's unwillingness to provide them. 

Fortunately, most consultants and RP's generally are willing to share some information, provided certain contractual arrangements are agreed to (in advance)...but there will be those that won't budge or simply cannot be located (creating another roadblock).  Hopefully, those situations are few and far between, but be prepared for a little resistance should they arise.

Stay tuned for future posts as we’ll dissect and try to simplify more items on these new NJDEP SRPLB Rule Adoptions. 

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding the LSRP program, environmental investigations and/or environmental business practices, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

How Much and How Long Will it Take: Volume III-Phase II ESA’s

As a continuation of our discussion on Phase I Environmental Site Assessments (Phase 1’s), we’ll take a brief look at the next step, or Phase II Environmental Site Assessments (Phase II’s).  As always, there is plenty of research, data, and guidance on this topic but the objective of this series is to simplify the discussion, and provide some essential recommendations).  

Phase I’s are often the due diligence starting point for a broad range of properties both inside and outside of New Jersey and are generally conducted to o enable a party to satisfy one the CERCLA landowner liability protections.  Phase I’s also follow a more standardized approach, and essentially mean the same to property owners, insurers, lenders, etc.; however, the same cannot be said for Phase II’s.  When initially established in 1997, the ASTM standard (E1903-97) linked “follow-up” investigations to a Phase I.  Over time, and through numerous discussions & iterations, a new ASTM standard was established for Phase II’s (E1903-11) which allowed practitioners and users to “tailor” the approach to their specific goals and objectives.  

As any practitioner can attest to, it is rare that any two (2) sites are alike and standardizing an approach was neither practical, or in most cases, cost-effective, but what about differences in professional judgment? We looked at this topic in a previous post “LSRPs & Professional Judgment,” and there are similarities when conducting Phase II’s, as the variable nature in professional judgment will dictate how much will it cost and how long a Phase II will it take.  Prior to starting any Phase II, the key points / questions to consider include:  

·       Who is the “User” and what is their risk tolerance? 

·       What are the goals and objectives of your client (“User”)?

·    What prior site information is available (e.g. Phase I ESA) and what is its quality? (Note: relying on a poorly            conducted Phase I by another consultant / investigator is never recommended!)

Any practitioner can look at a recent Phase I (and the twenty [20] or so Recognized Environmental Conditions [RECs] that may have been identified) and recommend a subsurface investigation including soil borings and sampling, or groundwater sampling.  Seasoned professionals will answer the above questions first, and through mutual agreement with the User, define an appropriate scope of work, and on many occasions reduce the cost and duration of a Phase II investigation. Those individuals or corporations that are more risk-averse may want all the bells and whistles, which is fine, as that generally correlates with an increased level of confidence for any given site, but it’s not always necessary.  Many Users are willing to accept manageable liabilities or risks, but unwilling to accept others (e.g. PCB or Chlorinated Solvent contamination).  As a result, it is imperative for the investigator to understand this in advance of conducting a Phase II investigation.

These limited scope investigations that only take between 1-day and 1-week can be quite beneficial to the User, provided they meet the objectives of the Phase II and the results obtained are usable and/or consistent with expectations.  Conversely, an unfocused (and poorly conducted) investigation that investigates every REC, takes over 4 weeks, and costs upwards of $50,00, may not provide the information that your client (or User) was looking to obtain…which gets you back to the topic of “quality over quantity,” and stresses the importance of effective communication.   

 We hope that you find these posts informative, and relatively useful, and your feedback is always welcome.  For further information regarding environmental investigations and/or environmental business practices, please don't hesitate to contact us at tfrancis@cardinallsrp.com  or www.cardinalLSRP.com.