14 Jan 4 Keys to Ensure your Environmental Consultant Isn’t Ripping You Off
Reading Time: 4 minutesAt ESA, we encourage clients to ask questions and challenge us. It’s part of a healthy dialogue and makes for a solid consultant/client relationship.
Often, ESA will recommend a course of action that requires additional samples, new wells, etc. Meaning, of course, more money. Besides blind trust, how do clients determine the legitimacy of their environmental consultant’s advice and ensure they’re being charged a fair price? There are a few things savvy property owners and investors should know to ensure they’re getting their money’s worth.
1. The basics of a Site Investigation (SI)
Among other things, the due diligence process (this applies to either an ASTM Phase I or an NJDEP Preliminary Assessment) identifies if potential impacts exist. When impacts are suspected, this commonly means that environmental samples must be collected and analyzed in a laboratory. The first round of samples is used to answer a “yes or no” question: do environmental impacts exist on the site? The number of samples to be taken and the chemical parameters to be identified are a function of both the findings of the due diligence report and that which may be prescribed in the New Jersey Technical Requirements for Site Remediation (N.J.A.C 7:26E).
If the analytical results show that chemical impacts exist above the cleanup levels, then more sampling must be performed. This is where costs begin to increase. If we are only discussing soil impacts, the goal is simple. ESA must determine the horizontal and vertical limits of the impacts. When the horizontal and vertical limits are known, ESA can then estimate a remedial approach (most commonly excavation, transportation, and disposal of the impacted soil). Typically, estimates generated in this fashion tend to be fairly accurate.
2. What if a chemical impact is found that absolutely cannot be attributed to actions as identified during the due diligence process?
ESA has heard something akin to this for decades. “What do you mean this chemical exists above actionable levels on my property? We never used that chemical; how can this be?” The due diligence process looks at activities attributable to your business and it looks at potential impacts that could have emanated from businesses that existed on site prior to your business.
Here is the good news: the New Jersey Department of Environmental Protection (NJDEP) does not require that anyone remediate impacts that originate from off site. That is, if a neighbor’s property has impacts that have traveled onto your property, either in the soil or groundwater, NJDEP will not force you to remediate. The catch is that your Preliminary Assessment Report must definitively show that the chemical in question was never used on site, and your on-site investigation must then demonstrate that the impacts seem to come from an adjoining property.
To emancipate yourself from this responsibility, you must do further investigation in an up-gradient direction to demonstrate that impacts are greater closer to your upgradient site perimeter. Thus, the logical inference is that they emanate from an off-site source. This effort is important and worth the effort because, even if there is no adjacent responsible party, the NJDEP will NOT make you remediate, even if the state must fund the cleanup themselves.
3. What if soil impacts intersect the groundwater table?
When the concentration of soil impacts adjacent to the groundwater table are above actionable levels, you must begin to investigate groundwater quality. Typically, this means you will be installing a minimum of three wells to determine the concentration of the chemical of concern. Your environmental consultant will also create a groundwater flow map showing the direction of groundwater flow and its gradient.
Every business in New Jersey must be concerned and wary of Contaminants of Emerging Concern (CECs). NJDEP defines CECs as follows: ”Contaminants of emerging concern are those chemicals that recently have been shown to occur in the environment and have been identified as a potential environmental or public health risk. New analytical capabilities have allowed scientists to identify chemicals in the environment in extremely low concentrations.”
Specifically, CECs refer to a class of chemicals called Per- and polyfluoroalkyl substances (PFAS). PFAS chemicals are ubiquitous, persistent, and toxic. So much so that NJDEP deems it important to create a standard that is protective over a lifetime. To that end, NJDEP groundwater cleanup standards for PFAS are measured in the parts per trillion range, while other groundwater contaminant cleanup standards are quantified in the parts per billion range.
4. What if the data indicates that remediation is necessary?
The NJDEP allows for innovative data manipulation called compliance averaging. To be brief, by applying the various NJDEP compliance averaging techniques to your unique data, ESA can often reduce the amount of remediation required and, in some cases, eliminate it altogether. Recently, ESA was able to reduce a soil remediation project from $2.2 million to $1.4 million by implementing a technique called Thiessen Polygons.
Boiling this all down…
There are different drivers that dictate the work that an environmental consultant must perform. The first set of drivers are mandatory as established by the NJDEP or whatever regulatory authority has jurisdiction. Work of this nature must be completed; there is no choice. This includes determining the extent of impacts in either soil or groundwater.
Other work that ESA suggests is designed to shift responsibility for remediation to others. When ESA is successful, the savings can be substantial. NJDEP’s position on this matter is simple: you are guilty until proven innocent. And it is you, the responsible party, that must expend your own funds to prove your innocence. A frequent example of this is when ESA suggests taking upgradient soil samples or installing an upgradient monitor well to deflect your responsibility.
Conclusion
As a client advocate, ESA takes very seriously every recommendation we make that costs our clients money. We encourage them to ask questions so they fully understand what we are doing and why. If the work is mandatory, we’ll tell you. And if the work is not mandatory, we will provide a full explanation of what we are suggesting and the potential benefit to be derived.