Environmental Regulatory Re-Openers
By Sara Brothers, Divisional Vice President – Technical Support Director, Great American Environmental
Achieving a “no further action” (NFA) determination from a regulatory agency for a spill, release or legacy pollution condition is a major milestone for many commercial and industrial sites with pollution conditions. The tanks have been pulled, the remediation system has been decommissioned and the wells abandoned.
But, just how good is that NFA? Was some level of contamination left in place? And, what could cause an agency to re-evaluate or re-open a closed regulatory case? Science is constantly evolving, new chemicals are introduced or phased out and the impact of chemicals is continually being evaluated and updated. As a result, regulations and cleanup levels are also being updated and changed.
When new information supports a new screening level or cleanup standard, sites with an NFA may appropriately be re-evaluated to determine if a site should be re-opened and additional site work is necessary.
Re-openers can be triggered under multiple scenarios. Here are a few common ones:
- Change in land use where a more sensitive population may come into contact with residual contamination left in place. For example, a service station may achieve regulatory closure for an underground storage tank release, with the understanding that the site will be used again as a service station. If the site is subsequently sold or redeveloped for residential purposes or for use as a school, additional site work may be required to lower residual levels to a protective level.
- Revisions in cleanup levels that typically lower a standard for a known chemical or metal of concern. For example, in 2001, EPA adopted a lower standard for arsenic in drinking water systems, lowering the standard from 50 parts per billion (ppb) to 10 ppb. More recently, several state programs have revised and lowered cleanup levels in soil gas for trichloroethene (TCE) and tetrachloroethylene (PCE), two common chlorinated solvents. Sites that closed under the older, less stringent cleanup levels may be required to do more investigation or potentially more remediation, in order to meet new criteria.
- Investigation of a “new” media (soil, groundwater, surface water, sediment, soil vapor, indoor air) that may not have been evaluated previously. This is common, especially at sites that achieved NFA more than 10 years ago with residual volatile chemicals remaining in either soil or groundwater. The presence of contaminated vapors in soil vapor generated from the off-gassing of residual volatiles, and their potential to impact indoor air through a winter heat stack effect, was not understood or evaluated.
- Identification of a “new” chemical of concern, aka ‘emerging contaminant’, that was not tested for previously. As an example, in the 1990s, many closed underground storage tank cases were re-opened by regulatory agencies in order to evaluate the nature and extent of the fuel additive methyl tert butyl ether (MTBE).
Some recent emerging contaminants triggering re-openers are:
- 1, 4-dioxane (used as a stabilizer in the manufacture of solvents)
- Perchlorate (as an oxidizer from propellants and explosives or naturally occurring in some fertilizers)
- 1, 2, 3-trichloropropane (TCP) (associated with agricultural fumigants)
- Hexavalent chromium (from metals processing and plating)
- Per- and Polyfluoroalkyl substances (PFAS) (associated with textiles, fire-fighting foams, and other industrial uses)
- Some state and federal regulatory programs have built-in, periodic re-evaluations of closed cases in order to determine if the closure is still protective. For example, the federal Superfund program (CERCLA), conducts five-year reviews of Superfund sites that have had remedies implemented. If the remedy is deemed inadequate, additional site evaluation and cleanup may be required.
These re-openers are a few of many. Regardless of cause, and whether a site has an existing or new owner, environmental insurance can provide risk transfer for protection against financial loss. In many cases, a premises environmental liability policy can be crafted to provide protection from regulatory re-openers that may occur due to the reasons listed above. Coverage for cleanup with a government trigger often is available for sites with prior NFA determinations.
Claim Scenarios: Regulatory Re-Openers
Agricultural Chemical Storage Facility
No further action
A former agricultural chemical storage facility conducted site assessment and remediation of nitrate contaminated soil and groundwater, and received no further action for the known conditions.
Several years later, following the discovery of the emerging chemical 1, 2, 3-TCP in a nearby municipal well, the state regulatory agency required all agricultural facilities with known releases to sample their wells for TCP. The chemical storage facility discovered elevated TCP concentrations at their property, and was required to conduct significant on- and off-site remediation, as well as provide treatment for the impacted municipal well.
Retail Shopping Mall
No further action
In 1999, a dry cleaning tenant at a retail shopping mall experienced a release of PCE dry cleaning solvent. Soil and groundwater samples were collected, and the regulatory agency granted NFA for the release.
In 2017, the shopping mall was sold. During due diligence, a Phase I Environmental Assessment Report recommended evaluating the former space for vapor concerns because the 1999 NFA did not include evaluation of soil vapor or indoor air quality. Soil gas samples collected from beneath the slab of the building indicated elevated PCE and TCE concentrations. Further sampling showed that the indoor air of the tenant space was also affected. As a result, the regulatory agency re-opened the case file, and required active remediation.
Underground Storage Tank
No further action
In 2005, a UST site with petroleum hydrocarbons in soil and groundwater contamination was closed under a “low threat closure criteria,” which allowed contamination to stay in place as long as the site remained a service station.
In 2017, the site was sold and redeveloped as a learning center for children. During a periodic five-year review, the regulatory agency identified the change in property use. Because site use had changed, the agency re-opened the case and required additional site assessment and remediation of residual petroleum hydrocarbons.
The claims scenarios are provided to illustrate an exposure you could encounter. The facts of any situation that may actually arise and the terms, conditions, exclusions and limitations in any policy in effect at the time are unique. Thus, no representation is made that any specific insurance coverage applies to these claims scenarios.