Pay Me Now or Pay Me Much More Later

“To be honest with you, I took a risk and bought the site without a Phase I ESA,” an inquirer said of an iconic corner site in Tampa he plans to redevelop. Here’s what we found out, that could make hair stand up on the back of your neck:

  • two underground storage tank locations with tanks closed-in-place in the early 1990s (still there), and piping and vents apparently still in place. We think the facility was cleared by the regulators after much time passed and an enforcement action was taken. We think.
  • eight hydraulic lifts in place, with at least five underground hydraulic fluid reservoirs to excavate
  • perchloroethylene groundwater contamination, either from the site or the up-gradient historic dry cleaners, both of which are in the state’s dry cleaning solvent cleanup program
  • previous use of the site as a gasoline station and then for auto and brake repair
  • likely asbestos in the building, with demolition planned for redevelopment

These are the kinds of things you need to know before you buy. Obviously, the risk he took was far greater than what was expected. Moreover, redevelopment will now be contingent perhaps on an asbestos abatement action prior to demolition and significant ground alteration and possible remediation, i.e. excavation, before footers can be laid.

The irony of all this is that the risk was taken to save money, a relatively small fee for the Phase I ESA. I think there was a commercial made about “paying me now or paying me later?”

April 11th, 2019|Insights|

Bad News

Disseminating bad news can be easy for large production shops, but for the comes-highly-recommended
consultant hand-chosen to work on a challenging site, the roll out must be carefully orchestrated.
What needs to be tucked far back in one’s mind is that additional work that may result in a bonanza of
fees. The last thing we want to be is money-grubbing when we’re supposed to be professional. Empathy
should always be employed.

One of my longstanding clients inherited a business with real estate primarily involved in wholesale dry
cleaning supplies. Of course, even as late as the 1990s, perchloroethylene was used in copious amounts
in your typical dry cleaner. As a result, supplies of the solvent were maintained at the company’s various
warehouses across the Southeast. As one might guess, spills resulted in major soil and groundwater
contamination requiring literally millions of dollars to remediate at multiple locations. Being close to the
client, he often hoped to be rid of the “mess” before he died. That didn’t happen.

Another group of sisters comprised a trust whose major asset was a valuable downtown property
destined for development as high-rise apartments. What they were envisioning were Viking River
Cruises and a dream car or two. What they got was news from me that the site would require extensive
soil remediation before it could be sold, and at no small cost.

To deal with this problem, here are some tips to employ from the beginning.

  • Be forthcoming with the perceived risks of the project. Use your experiences to create possible
    eventualities so that your client will not be blindsided.
  • Don’t trap your clients into what you know will be an expensive multi-event project with a
    teaser amount of upfront testing, followed quickly by a change order. Try to get the cards on the
    table. This is a case of Under Promise, Over Deliver. Lower expectations. Work hard for finality.
  • Communicate as you go. Use layman’s terms. Generally, environmental issues are very scary to
    those who use Love Canal as their reference point.
  • Test for what you’re worried about based on good background data and sound reasoning. If
    you’re handed the Phase I of someone else to do “Phase II” testing off of, you’d better do you
    own homework.

A successful environmental consultant needs to wear more than a hard hat and lab goggles. He or she
needs to possess a reasonable amount of empathy and work hard at communicating clearly, concisely,
confidently and courageously.

March 15th, 2019|Insights|

Old Arsenic Laced – RECs Related to Arsenic

There are many contaminants that might be found in the soil and groundwater, but none strike more
fear than arsenic. This is not because it’s particularly lethal, but because of its name, made notorious by
the 1939 play Arsenic and Old Lace.

Yes, arsenic will slowly kill you if ingested in substantial amounts, but not at the levels typically found on
old golf courses and citrus groves. It is considered carcinogenic by the risk-based assessments used to
establish limits for remediation in the state of Florida. Currently, residential exposure in soil is capped at
2.1 milligrams per kilogram, and commercial/industrial levels cannot exceed 12 mg/kg. But at low levels,
there may be mitigating factors that can be sorted out in a Phase I Environmental Site Assessment.

Back to the name. Land developers can withstand a little DDT perhaps, but not—heaven forbid—arsenic.
The word congers up all manner of panic in the populace. This makes light of an issue that must be
addressed in a Phase I ESA on extremely valuable sites. It’s always problematic when vast acreage may
be impacted from previous agricultural operations that’s now prime land for development, e.g. all
Central Florida. It’s even harder to assess when previous consultants have either been too lenient, or
have dropped the hammer. The big risk to property owners and consultants alike is another buyer
and/or consultant coming behind you and making a big deal out of the potential presence of arsenic in
the soils, possibly from former agricultural operations. LAS has handled this sticky issue with a general
methodology that makes a lot of sense, but still may not ward off aggressive assessors looking for Phase
II work. In our minds, at least the issue’s been addressed in an intelligent way.

It’s first useful to know that arsenic has been used for worthwhile purposes over the years. Arsenic dust
was sprinkled on citrus trees in the early 20 th century to sweeten citrus, particularly grapefruit. This
process was highly touted as very effective. A compound containing arsenic was also used as an
insecticide in citrus groves at one time. Arsenic has been used in chicken feed to kill parasites and
promote growth (Roxarsone), which is a factor in assessing the soils of long-time chicken farms. Up to
a few years ago, a chemical containing arsenic was widely used on golf courses as an effective
herbicide (monosodium methanearsonate or MSMA). And arsenic was the pesticide of choice in
solutions used in federally-mandated cattle dipping vats in the 1920s and 1930s. We were even told by
a descendent of a large landholder in our county that everyone had a bag of arsenic in their shed, and it
was cheap and used for everything. So, if you’re assessing a citrus grove, or golf course, or chicken farm,
or cattle dip vat, or someone’s old shed, arsenic may be the threat.

Now in our opinion, the assessment of golf courses and cattle dip vats are for another discussion. But
the presence of arsenic in soils on valuable former agricultural land must be considered on multiple
levels. Put in perspective, if you will. First, let’s say you’re working on land worth $10,000,000 or
$100,000,000, and you may find some residual arsenic in the soils if you looked. Are the developers
enthusiastic about testing thousands of acres for it? Or worried about a $40,000 cleanup. What’s the
risk if, say, all the trees will be pulled up and the land graded. Then during site development, the land
will be totally transformed with pond excavation, grading, filling, discing, roads, etc. Then houses will be
constructed with landscaping and sidewalks. All this work will, in theory, effectively “mix down” arsenic levels possibly to undetectable amounts, and the actual areas lived on will have hardly any realistic
exposure to arsenic if present. Then there’s studies on how much dirt a child must ingest in the backyard
to be threatened, and you’ve got to have “Pica” kids to begin with, i.e. those kids prone to eat dirt. One
can see the developer’s viewpoint, and why thousands of acres have been developed without a soil
sample being pulled (most of the Disney area). And the regulators haven’t even raised an eye brow.

Yet, there are consultants out there who will make a federal case about it, and so fellow consultants
factor in their own risk of being called out for not having done the testing, and remember, we’re talking
about ARSENIC!

Here’s what we’ve always done. First, we look for storage facilities and potential mixing areas on-site,
such as irrigation well locations. We consider these areas as posing the highest risks for the presence of
concentrated arsenic. So, on a big project that’s not been assessed, those areas are targeted. Ultimately
some remediation may need to be done, but it will be targeted and contained. The thinking is that areas
where the chemicals were broadly applied should show lower concentrations. The rub comes when
there are no such buildings or wells. Then you’re considering land on which arsenic in herbicides or
pesticides has been broadcast in diluted form from border to border over the years– maybe. Yes, you
can pull your samples, but is the solution digging up the top 2 feet of 100% of the land for a few
milligrams per kilogram over the residential limit prior to development? In these cases, we’ll go in detail
explaining the risks and the fate of the land during and after development. Discussed in these terms, a
buyer can make an intelligent decision and look the other way—accept the risks—and another
consultant will at least consider you as “thoughtful.” ALWAYS, though, it’s not our decision to make, but
the client’s and his or her environmental attorney.

This brings me to a real sticking point. It’s helpful to resist the urge to put recommendations in your
conclusions. Why back your big-time developer into a corner? Why generate a scope of work that may
by necessity or future discovery be totally unrealistic?

Yes, arsenic is listed as a hazardous waste at high concentrations. Yes, it’s a carcinogen. Yes, it will kill
you if injected or ingested into the body at full strength. Yes, there are maximum levels allowed in the
soils (and in groundwater) on residential and commercial/industrial properties in the state of Florida.
But, use some common sense. Weigh all the factors. Be thoughtful. We’re assessing risks, not creating
them.

Recently, I went into detail explaining the risks of assessing a large agricultural parcel considered for
purchase by a national developer. He stopped me in mid-sentence to say, “this is not our first acquisition
of this type of land.” Which was to say, just do the assessment. Say what you have to say. We’ll take it
from there.

References

Chapter 62-777 Florida Administrative Code

“Effect of Lead Arsenate Insecticides on Orange Trees in Florida,” by R. L. Miller, Associate Entomologist,
Ione P. Bassett, Senior Scientific Aid, and W. W. Yothers, Entomologist, Division of Fruit and Shade Tree
Insects, Bureau of Entomology, USDA, Technical Bulletin No. 350, February 1933.

“The Use of Arsenic on Citrus Fruit for Processing, A Review,” by Gray Singleton, Salada-Shirriff- Horsey,
Inc., Plant City, Florida State Horticultural Society, 1958, Pages 262-265.

https://www.washingtonpost.com/national/health-science/pica-the-compulsion-to-eat-dirt-and-other-oddities-is-found-in-many-cultures/2012/05/14/gIQA1HhXPU_story.html?utm_term=.890f0120afab

http://newsroom.wiley.com/press-release/angewandte-chemie-international-edition/poultry-feed-arsenic-more-problematic-assumed-

January 9th, 2018|Insights|

02/21/17 Update

We’re amazed at how rapidly Phase I environmental site assessments are produced these days. The environmental data acquired is almost a Phase I ESA in and of itself. With everything transportable into a template, all you need to add is a quick site inspection and a few perfunctory phone calls that will not likely be returned in time, and the report’s out the door. Now that’s how you make money in this business! However, the client is relying on the Phase I consultant to cross the “T’s” and dot the “I’s” because he’s the one taking title. What ends up happening, because there is little to no deep analysis of all the facts of the case, the consultant resorts to tried and true standardized “recognized environmental conditions.” For example, see a soil stain? Must collect a soil sample. Septic tank drainfield? Test it. Who knows what manner of evil has been dumped into it? But you’ll not know, because the questions aren’t asked and the risk is not assessed. The Phase I ESA goes out in less than two weeks, but the client is saddled with complicated problems to resolve, and most likely must stare down a list of “recommendations” in the report, rather than “opinions.” What’s worse, if the report is shared with a bank, a “Phase II” ESA is absolutely guaranteed. This is all good as a business model, but perhaps not so good if you want to ply your profession for the good of everyone involved. We have found that a little more time pouring over available information may eliminate unnecessary testing, and perhaps point to where targeted testing is essential. All will win out in the end. For example, you can pretty much tell if a drainfield is receiving only domestic wastes. Yes, some egregious promiscuous discharge could occur by a past nefarious owner or tenant, but what are the chances? We’ve tested drainfields for 25 years and have never really detected material contamination. Maybe this is just the luck of the draw, but this practical experience should be factored in. If, however, heavy manufacturing is going on, there are floor drains everywhere, and the shop sinks are black as night, test it. So, a little discernment on the part of the environmental consultant would be nice. Another assessment we recently completed had a regulatory data report indicating several landfills some 2,300 feet south of the subject site. Normally this would be a safe distance away. Only after a deep review of regulatory file information did we discover that 10,000 tons of contaminated soil from a battery dump were removed from an area immediately abutting our site. What led us down that road? The grandson of a previous owner we contacted told us he could see battery casings in a wetland from his vantage point on-site. A case of putting two and two together. It’s about time environmental professionals in this field stop trying to be more efficient and more profitable and start doing what they’re called to do. You might find you have plenty to do, and you might gain a few more “clients for life.”

February 21st, 2017|Insights|

01/07/17 Update

Phase I environmental site assessments are not normally the focus of environmental consulting firms. Because of market forces, there is always a ceiling to what the consulting firm can charge for a Phase I ESA, and then the impetus is on performing the assessment as quickly, efficiently and cost-effectively as possible. While all businesses should be run this way, in many cases, without adequate and applied training and experience, it is very possible for this segment of a firm’s environmental work to be given short shrift, with the environmental consulting firm relegating the work to junior personnel, who may or may not possess the well-rounded attributes necessary to cover all the angles presented in a complex due diligence case. Ultimately the assessor uses a cookie-cutter template to complete the report, which is then reviewed by a senior consultant who is likely dealing with far more profitable and complex projects. Then the fallback is a dispassionate listing of recognized environmental conditions without usable opinions in order to reduce the firm’s business risks caused by scratching only the surface of a particular case. Unfortunately, the person most likely capable to perform the Phase I ESA with the level of professionalism required is the senior person reviewing the work, and at this point, it’s far too late to check out other sources, or take another trip out to the site to “get another set of eyes on it.” So, you end up getting stuck with a set of conclusions that can only be resolved with “Phase II” testing, which is really the raison d’etre for offering Phase I ESA services in a large firm in the first place. In Land Assessment Services, Inc. you have in an environmental consulting firm the best of all worlds, a senior person doing it all. With 25 years of experience there is not much I haven’t seen or experienced. Sure, we have ways of doing our work efficiently and cost-effectively. But the initial examination is handled by the doctor, not a nurse or PA. Choose Land Assessment Services, Inc. for your environmental consulting needs–in Tampa, Florida, or anywhere for that matter–and you will have done yourself a great service, and you likely won’t pay a penny more than the hot-shot international environmental firm with the glitzy website.

January 7th, 2017|Insights|

10/30/16 Update

If you perform enough Phase I environmental site assessments, you will build a dossier of case studies, and time and chance may allow you to see how applicable your conclusions were. A scary proposition I might add. I am working on one of these right now. I assessed an industrial site in 2014 tapped for multi-family residential development. I found minimal obvious environmental conditions during my site visit, but a review of state files was rich with red flags. The original operator had a waste oil pit on the property that was dug out under the auspices of the state, but apparently not closed. A former fuel UST area had been closed, but groundwater contamination was still present when the facility went inactive in the state’s petroleum cleanup program. The county’s complaint and warning files were replete with entries. Some worrisome stuff. Previous operators were in the wastewater and septic tank business, capped off later by auto and transmission repair operations. Site activity dated by to the late 1950s. The previous Phase I environmental site assessment report provided was “clean.” Before releasing our report, with more research and interaction with the state, we were able to obtain confirmation that the used oil pit case had been closed. But still, this kind of activity, together with the county’s bulging complaint file, was cause for sleepless nights if our report did not reflect the elevated “business environmental risks” in acquiring the property.

In the end, since there were still four buildings on the abandoned property and much of the site was overgrown, I made a sweeping statement that the full story of the site would not be known until the buildings were removed and excavation was performed. Based on our assessment, the clients acquired the site. We were then engaged to perform follow-up groundwater testing in the former fuel UST area and did the work necessary for the state to close the UST facility with a “no further action” determination. But after that, we did nothing. We later learned that the site had been razed and a new potential buyer/developer was conducting due diligence. Its environmental assessor was charged with confirming our work by following the same tracks. Apparently, our assessment was confirmed and warnings heeded, and the prospective purchaser had a comprehensive ground penetrating radar (GPR) study conducted. That study revealed suspected buried metallic objects including possible vaults and tanks in at least 24 locations. Our client reengaged us to follow through on these findings with backhoe test pits.

To shorten this unfortunate saga, here’s what the Phase I environmental site assessment should have listed as “recognized environmental conditions” if we could have seen all that had transpired on the site over 60 years. A second waste oil pit; apparent systematic deposit of wastewater and other solid wastes on the property; buried debris including small tanks, truck tires, hoses, motorcycle, lawnmower, large concrete chunks, portable toilets, all over the site; a buried burn pit; a large septic tank and wastewater pipeline; and the list goes on. As a result, a permit had to be obtained from the county to remove the solid wastes, and site assessments in accordance with state rules had to be conducted on the waste oil and burn pits, an area where metals groundwater contamination was present, and where petroleum-contaminated water was discharged and accumulated over time. Ultimately 2,650 tons of contaminated soil and debris were removed from the site, and one can only imagine the corresponding costs.

Did our Phase I ESA conclusions hold up? The carefully crafted statement regarding the need for excavation after future site clearing apparently saved the day. We are still engaged by our client and there have been no sleepless nights. The moral of the story? Do the research. Be thorough. Recognize each site’s Achilles’ Heel. And go with your gut.

October 30th, 2016|Insights|

4/17/15 Update

Everyone’s risk posture is different. Our Phase I environmental site assessments (ESA) need to accommodate for the degrees of difference, and make it possible for the risk adverse to decide to be cautious based on our opinions, or the “gung ho” to file away our opinions and move forward without holding back. It’s also important come down squarely on a side, and that’s often more effectively done with a well developed case, building on solid assessment techniques. Environmental assessments are objectively subjective or subjectively objective. We are not reading chemical test results and rendering out opinions, but facts and bits of data from all over the map. Environmental assessment is an art, not a science, most frequently performed by scientists.

April 17th, 2015|Insights|

6/10/14 Update

LAS has settled in with the new ASTM standard (ASTM E 1527-13), having retooled its Phase I ESA reports. We are not really doing anything different from our previous comprehensive site assessment approach, but vapor migration risks are now discussed as a regular feature.

We continue to be alarmed at the practices of the big national Phase I ESA firms, particularly the entrapment that invariably comes from how RECs are worded, and the incorporation of “Phase II” ESA recommendations in the report. Not only do you tie the hands of the client, but any bank involved is compelled to require their customers to proceed with perhaps exorbitantly expensive soil or groundwater testing. The more tied-in the bank, the less control the client has, and the big ESA companies know this all too well. They are feasting off this financially, falling back on their role as the harbinger of doom if what they recommendation is not followed. We are fine with what is an obvious REC, but time and time again, they are listed with insufficient professional opinions/justifications. If you are a professional, you should be able to sort through the environmental risks, weigh them, and see the nuances. Some of the Phase I ESAs we’ve read have amounted to blunt trauma. It’s really impossible to properly do a Phase I ESA in 1.5 +/- days and get a good feel for the issues, no matter how big and efficient you are. Inexperienced people are gathering the information and higher-ups in other cities are calling the final shots, based on economic and risk-adverse company policies. At LAS, we own up to our responsibilities and don’t try to pawn off all the risk to our clients. What good are we if we can’t make a close call?

June 10th, 2014|Insights|

1/1/14 Update

LAS will begin to perform its Phase I environmental site assessments (ESA) according to the new ASTM standard (ASTM E 1527-13) beginning January 1, 2014.

The current uncertainty involves the fate of the previous standard ASTM E 1527-05; i.e. whether it will be completely replaced by 1527-13, or whether it will remain on as a second “lower cost” alternative for satisfying the EPA’s All Appropriate Inquiry (AAI) rule.

The new standard was released by ASTM November 6, 2013, with an effective date of November 1, 2013, prior to the conclusion of the EPA’s final rulemaking. However, an EPA official sees the process as “procedural,” and has recommended that the new standard be adopted by consultants. She also acknowledged that there will be a transition period as projects in the pipeline commenced under the previous standard are completed. As for what other institutions, clients and consultants are doing, many consultants have switched over, but some are waiting for the AAI rule to be clarified by the end of the year, or in the early part of next year. For example, the SBA is waiting on the rule change before requiring use of 1527-13.

The new standard calls for an assessment of vapor migration potential, more in-depth governmental file review of the property and adjoining properties, refines the definitions of a “recognized environmental condition” and “historical recognized environmental condition,” and adds a new findings category “controlled recognized environmental conditions.” Some of the new tasks will add to the time necessary to complete the assessment.

Practically speaking, it’s been our belief that the extent and depth of our work has always exceeded the previous standard, so we are not seeing a significant change in our due diligence process. But more time will be spent in satisfying some of the new requirements.

January 1st, 2014|Insights|

10/30/13 Update

Land Assessment Services is ready to implement ASTM E 1527-13, as November 2nd marks its release date, we are told. This new version updates ASTM E 1527-05 and changes some key definitions, adds an emphasis on vapor intrusion assessment, and requires more in-person review of regulatory files during the completion of a Phase I environmental site assessment (ESA). This updated standard had to endure a rigorous review by the EPA for compliance with its All Appropriate Inquiry (AAI) rule. LAS is brainstorming now on how to add the new tasks into our workflow with significant impact to our pricing. We think our work product has always exceeded the ASTM standard anyway, as we adhere to the “I want to be able to sleep at night” approach to providing our professional services.

October 30th, 2013|Insights|