All environmental losses share common characteristics. They are typically expensive to clean up and the cleanup costs often increase over time as contaminants migrate and regulatory standards are enforced. Unless specific environmental procedures are adhered to, it can be difficult to establish the time, extent, and amount of the loss.
To make the job easier, a summary of commonly used methods for identifying the causes of environmental losses and third-party impacts will be discussed, as well as how to establish the time and extent of a loss. Innovative remedial technologies for cleanups also will be discussed.
Cause and Origin
A cause-and-origin investigation should describe the location where the loss occurred and what caused the loss. These investigations are vital to a claim adjuster in determining if the environmental loss is covered by a policy's provisions. A cause-and-origin investigation describes in detail how and why the loss occurred.
For example, it is a common misconception that all underground storage tank leaks occur only as the result of tank corrosion. In fact, leaks occur from a variety of causes, such as over-pressurization or overfill during delivery, improper tank or piping installation, incompatibility between the tank materials and the liquid contents inside the tank, improper maintenance of spill containment and spill-notification devices, and improper repairs.
Cause-and-origin investigations for underground storage tank systems are performed by a variety of professionals, including environmental consultants with expertise in underground storage tank installation and forensic engineers. The typical methods of assessment include visual observation, tank- and line-integrity testing, thorough research into the history of the tank system, installation diagrams, and product delivery/usage records. Once the cause and origin of an underground storage tank (UST) loss is confirmed, it is necessary to determine the extent of the contamination.
Owned Property/Third-Party Impact
The owned property exclusion generally bars coverage for cleanups conducted on the property of the policyholder. However, in many states, groundwater is not considered property owned by the policyholder. Furthermore, the owned property exclusion may not apply to cleanup if a third-party property is impacted and the cleanup on the policyholder's property is intended to prevent further damage to the third party.
Soil and groundwater samples must be collected in order to determine if a third party is impacted. These are usually collected from the subsurface using drilling equipment. Third-party investigations range in cost from $2,000 to $4,000.
There are several reasons why determining the timing of an environmental impact is important. Prior to the absolute pollution exclusion that was introduced into CGL policies in 1986, exclusions for environmental cleanup were very limited. Therefore, claims that date the environmental loss to 1986 or prior may be covered claims. Furthermore, knowledge of the date of the loss is important in subrogation proceedings.
In some instances, dating a release from a UST can be simple. These include losses that occur from a specific event, such as a tank overfill or from a known tank piercing. However, in many cases, leaks from underground storage tanks can go undetected for years. During this period of time, properties change ownership, tenancy, and insurers.
Several forensic methods are utilized to determine when an environmental loss occurred. The following methods can be used singularly; however, an appropriate combination of forensic techniques makes any conclusion more defensible.
Forensic laboratory analysis is one method that is often used to determine the date of an environmental loss. Forensic laboratory analysis is often beyond the type of laboratory analysis that is required by regulatory authorities and therefore must be specifically requested. The type of forensic analysis that is required depends upon the leaked contaminant. For example, gasoline retailers use different proprietary additives such as anti-knock compounds, blending agents, anti-rust agents, and anti-icing agents. These additives are often replaced by new and improved additives over time. By determining the presence of these additives in the subsurface, conclusions can be made as to the date of the loss and which retailer manufactured the gas.
Heating oil is not as refined as gasoline, so an analysis of additives does not play as significant a role in determining the timing of the contamination. Accordingly, laboratories that conduct forensic analysis on heating oil losses typically analyze the degradation products that are present in the subsurface from a heating oil loss. From that data and knowledge of how long it takes those degradation products to form, forensic laboratories can estimate how old the contamination is.
Groundwater modeling also is used by geologists and hydrogeologists to predict the age of a release. This type of investigation consists of fully delineating the horizontal and vertical extent of a contaminant plume. Based upon the distance the plume has traveled, the forensic expert uses models that incorporate many factors, such as aquifer hydraulic properties, soil type, and chemical type to predict the rate at which the contaminant is traveling. Once the distance of the plume and the rate of travel are known, then the expert can predict how long the contamination has been present in the ground.
Although the methods described above have been presented in a simplistic manner, they are often quite complicated and open to interpretation among experts. The more data that is available to the expert conducting the forensics investigation, the more defensible the conclusion.
Forensic investigations are complicated by many factors. For example, in some cases, a cleanup has already been partially completed, removing much of the evidence an expert needs to make his case. In other scenarios, there are mixed plumes that must be deciphered. Mixed plumes often exist in urban and industrial areas where there are contributing environmental contaminants from off-site properties or other contaminants that change the rate at which the target contamination degrades and travels.
Cleanup Options
Numerous factors, such as the presence of basements, underground utilities and other physical barriers, geology, depth to groundwater, and presence of bedrock will determine which method of remediation will be most effective.
The principle types of remediation are known as ex-situ and in-situ. Ex-situ remediation involves removing and treating contaminated soil and groundwater in another location, either on- or off-site. The types of ex-situ remediation include incineration, solidification and stabilization, soil washing/steam stripping, bioremediation, and air stripping. Ex-situ remediation is the most effective and fastest form of remediation, particularly when contaminated soil and groundwater can be readily retrieved.
However effective, the ex-situ method is not always feasible, due to various construction obstacles. For example, if the impacted soil is impossible to gain access to because it is under a building, a method called in-situ remediation is more plausible. In-situ remediation is an effective and recognized method of treating contamination in place. It includes chemical oxidation, bioremediation/augmentation, soil vapor extraction, pump and treat/dual phase extraction, metals stabilization, steam injection, thermal desorption/six phase heating, and natural attenuation. In-situ is generally more costly than ex-situ remediation but it is less invasive.
A combination of technologies, known as a "treatment train" approach, is most commonly used to treat contamination that involves accessible and inaccessible soil and groundwater. In other words, this approach involves excavating contaminated soil that is accessible and treating remaining soil with in-situ remediation.
To ensure the best possible outcome for any remediation work, it is necessary that the consulting firm consider all possible methods and maintain constant communication with all parties involved in the remediation process.
John Brennan is the president of Brennan Environmental, Inc., an environmental consulting firm located in Summit, N.J. He may be reached at www.bei-env.com.
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