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Half full- time is not really an issue right now, so at least I have that going for me...
I did my research and the contractor that had removed the soils was licensed and qualified with the state and I have all the disposal paperwork. The groundwater part does suck, but I guess all I can do is re-test when I can get the funds available and see where it is at. Not sure how well natural attenuation will work, and I know there are a ton of variables to determine the effectiveness but it couldn't hurt at this point. I have very sandy soils so I'm hoping that may help. It's pretty much been one of the worst situations I've gone through and the feeling of being trapped by a property or the thought of having to file bankruptcy makes me sick. (It's been almost 3-1/2 years since the leak...long time to worry about this) I was more curious if anyone out there has heard of any situations where the DEP has acted on a homeowner's spill, or pursued legal action. Would bio-remediation (bacteria) be a good case for my situation? I did get a price on in-situ chemical remediation (hydrogen peroxide) and it was still very expensive, mostly for the testing, wells, and analysis, not so much for the actual product and installation itself.
Hi TR2, I'm sorry to hear about your situation! First question: Has your environmental consultant submitted any reports to the DEP? If so, they should have received, eventually, a response to the report, and in that response the DEP usually provides a date where they expect to hear from you and get an update on the situation. You should contact your consultant and see if they've received anything. If you're coming up on a deadline for another report, you may be able to get an extension. First extensions usually aren't hard to get.
I am also concerned with the fact that you have free product, but it sounds like you have a groundwater sample that was barely above the standards, leading me to believe all the free product has been removed. If so, the following information may not apply for you, but for future readers, I'll include it.
When free product is detected, there are several extra reporting steps as well as remediation steps that need to be completed in a relatively short period of time. Per the NJDEP Technical Requirements for Site Remediation (the "Tech Regs"), the presence of free product, or Light Non-Aqueous Phase Liquid ("LNAPL") must be reported to the NJDEP on a form within 60 days of discovery and removal of the free product must be started immediately. You have to determine the extent of the product within 1 year. These actions must be submitted to the NJDEP in a "1-year LNAPL Interim Remedial Measure" report, unless you happened to have another report going out at the same time, in which case I suppose the product removal info could be combined with that report.
Also, since the impacted groundwater is obviously close to your house, the vapor intrusion pathway may be a concern for you. Vapor intrusion is just what it sounds like, vapors coming from the impacted soils and/or groundwater may enter (intrude) into your house and nearby houses. In some cases, these vapors can be at levels that are harmful for you to breathe. You will need to compare your groundwater results to the vapor intrusion Ground Water Screening Levels (link below). If your results are above those screening levels, you are required to evaluate whether vapor intrusion is occurring in your house, as well as within a certain distance of the impacted soils/groundwater.
In the case of dissolved phase petroleum or in petroleum free product, any structure within 30 feet of the groundwater impacts would need to be investigated for vapors (assuming your groundwater results are above the screening levels). For example, the vapor intrusion groundwater screening level for benzene is 20 micrograms per liter. If your groundwater sample had benzene above 20 micrograms per liter AND there are one or more buildings within 30 feet of the monitoring well, the building(s) would need to be tested for vapors, aka "indoor air sampling."
I would contact your consultant and find out the following information. Personally I would ask the consultant for a copy of your entire case file, especially since you're footing the bill entirely. But verify the following items:
1. Has all the free product been removed from my property?
2. Did you find out how far it went (i.e. put a temporary or permanent well around the former AST)?
3. Have you reported all this information to the NJDEP (and get details)?
4. What is the timeframe from the NJDEP for further cleanup and can it be extended?
5. Have you compared my groundwater sample results to the vapor intrusion screening levels and do I need to do any additional work?
As to bio-remediation, if your levels are "barely above", the cost may not be worth it. However, while natural attenuation may work for your case, you will still have to have 2 consecutive rounds of clean groundwater samples before you can close your case. Depending on the soils left in the footing of your house, you may never achieve the remediation standards. Just depends on how impacted those soils are.
I'd make sure you're ok on the timeframes before you wait. You will be fined if you don't submit the required reports by the NJDEP deadline.
Thanks for the technical information. As far as your questions
1. Has all the free product been removed from my property?-- I WOULD ASSUME FROM THE EFR THAT IT HAS BEEN REMOVED.
2. Did you find out how far it went (i.e. put a temporary or permanent well around the former AST)? I DID HAVE THE PROPERTY DELINEATED AND IT DID NOT SPREAD MUCH AT ALL. IT HAD A DIAMETER OF ABOUT 7'-8' AND THEY REMOVED A MAJORITY OF THE SOILS. THE ONLY SOILS THAT DIDN'T GET REMOVED WERE DIRECTLY UNDER THE FOOTING SO WE'RE NOT TALKING MUCH SOILS LEFT. NO WELLS HAVE BEEN INSTALLED.
3. Have you reported all this information to the NJDEP (and get details)? NOTHING HAS BEEN SUBMITTED TO NJDEP YET. THE ONLY THING THAT HAS BEEN REPORTED IS THE CLAIM INTO THE DEP ON THE DAY THE LEAK OCCURED.
4. What is the timeframe from the NJDEP for further cleanup and can it be extended?
5. Have you compared my groundwater sample results to the vapor intrusion screening levels and do I need to do any additional work? I COMPARED THE LEVELS AND THE ONLY 2 COMPOUNDS THAT ARE OVER THE STANDARDS ARE BENZENE AND 2-METHYLNAPTHALENE. FROM AN AQUEOUS STANDARD BENZENE IS AT 22 AND 2-METHYLNAPTHALENE IS 100. I KNOW THE BENZENE IS OVER AND COULD TRIGGER A VAPOR INTRUSION BUT THIS TEST WAS ALMOST 2 YEARS AGO TOO, SO I'D LIKE TO TEST AGAIN AND SEE WHERE I'M AT BEFORE ANYTHING IS SUBMITTED TO NJDEP.
The last consultant was very helpful in the testing (they did not work with contractor that removed soils, the contractor used another consultant, the last one was recommended by my enviro lawyer) but I can tell by the many people I have worked with on this so far, that nobody is really too interested in working with me, and I'm going to guess because insurance is not helping at all and they know I don't have the funds to do much with this. The very first contractor I talked to totally blew me off once he found out I was responsible for all the costs and never returned any calls or emails after he found out. That's why I was curious as to anyone's input on possible solutions or penalties I could face. I spoke to the DEP about grants and loans and because it was above ground tank I didn't qualify for any aid, and they had informed me at the time that the grant program was going to be shut down anyway. It's a pretty bad situation but I guess things could always be worse.
Ok so they removed the product from the excavation using the EFR? And the ground water samples were collected from temporary wells? Since you have impacts to the groundwater you will need to install permitted permanent wells to obtain 2 rounds of clean groundwater. The wells would have to be installed near the source area and downgradient, assuming you have clean samples to either side of the groundwater flow direction. Permanent wells may help you get clean samples because the groundwater will have less sediment in it. So if you have slightly impacted soils and a silty aka turbid groundwater sample the groundwater impacts may be artificially inflated. You will need permanent wells to close the case. I would get that done and that way you can monitor the groundwater over time without mobilizing a driller each time. Initial cost upfront, but lower cost long term, plus they are required.
You are over the timeframes and vapor intrusion requirments have been triggered, barely. But I'd be concerned that when you go to close the case the DEP will fine you. I would help you out for free on my end but my new company might have my head. We don't usually do homeowner cases so maybe they wouldn't see it as a conflict of Interest.
I would get a quote for the wells. Don't know where you are but FirstProbe Environmental in Brick has low rates and he's a good guy. Chris O'Shaunessy is his name. But you'd need advice on where to install them. I'd ask your consultant.
Yeah the homeowner's are really not getting much attention without insurance. Let me know if I can help me I'll look into the conflict issue.
the groundwater testing was done through a temporary well. Since nothing has ever been submitted to the NJDEP, do you think it would be worth testing again from a temp well and see where it test now (2 years later?) At this point, the last consultant I was working with was recommended by my enviro lawyer and I know there firm doesn't usually handle residential remediations either. If anyone could recommend someone in the Toms River area that would be appreciated. Also, i'm assuming I need to hire an LSRP to handle the final paperwork for my case...whenever that happens to be. I thought that with the LSRP program, that the contractor could handle all the paperwork without having to involve the NJDEP for review. If the DEP fines me, then there's not much I can do except either A) pay it or B) start looking into filing for bankruptcy depending on how much this will cost me. Has anyone heard of any horror stories of this type of situation causing a homeowner to go bankrupt?
Great thread... very informative. I am an environmental law attorney and this sort of thing is what I've been doing pretty much full-time for the last three years or so. I'm no expert on the process of remediation, but based on my experience, everything Kiru has said is spot-on.
From a legal perspective I would like to point out that typically an insurance company is required to cover the remediation if either groundwater has been impacted or the contamination has spread to a neighboring property. The reason for this is because most of the time the exclusion that excludes coverage for environmental losses is applicable only to first-party claims and not third-party claims.
First-party claims are claims you make for losses you sustained to your insurance company. For example, if your house gets broken into and someone steals your diamond ring, that would be a first-party loss and would only be covered if your insurance policy provided coverage for such losses.
Third-party coverage means coverage for claims made against you by third-parties. For example, if a tree falls from your property and lands on your neighbor's car, your insurance company would be obligated to pay for your neighbor's car because your neighbor would have a claim against you for the damages to his car. The damage to your property from the tree falling (such as if there was a fence that got damaged) may be excluded under the first-party coverage provisions of the policy, but the damage to your neighbor's car could still be covered under the third-party coverage provision.
Getting back to remediation, groundwater has been interpreted in New Jersey as common or public property. Thus, when a tank leaks and impacts groundwater or a neighbor's property, the third-party provisions of the policy are triggered since your leak impacted either State property (via the groundwater) or a neighbor’s property.
A distinction between the tree hypothetical and an environmental remediation is that the damage to your neighbor's car can easily been segregated from the damage to your property and the insurance company can refuse to cover your first-party claims and only cover the loss to your neighbor's car. In the environmental context, that's not possible. You can't clean up only the groundwater or only the neighbor's property and therefore, if third-party coverage is triggered, your insurance company would typically have to pay for the whole remediation.
So one of the first things you want to do is determine whether (1) the contamination has impacted either the groundwater or a neighbor’s property; and (2) if so, whether the insurance company is obligated to provide coverage under the third-party provisions of your insurance policy.
This is all based upon the language of your specific policy and some policies are written such that third-party coverage is not triggered until a "claim" has actually been made, but most companies will cover the loss even if a claim has not been made because your liability is fairly evident and a claim is almost certainly going to be made at some time in the future. Also, some companies will exclude such coverage from both first- and third-party coverage, but I have often seen insurance companies attempting to exclude coverage for a third-party claim based upon an exclusion found in the first-party provisions of the policy. Let’s face it, for a layperson, if an insurance company shows you something saying they don’t cover environmental losses, you probably won’t question whether that’s applicable to both first- and third-party claims.
Anyway, I thought that may help some people on here who have had their claims denied by their insurance company. Keep in mind that your insurance company will almost always deny the claim initially and you may have to follow-up and keep demanding coverage in order for them to undertake responsibility.
If you have impact to groundwater or a neighboring property and your insurance company refuses to provide coverage even after several follow-ups, I would recommend at least consulting with an attorney. In New Jersey, a successful claimant in an insurance coverage case can get attorneys' fees paid for by the insurance company under R. 4:42-9(a)(6). There are often strict time requirements that can bar an otherwise valid claim and thus, time is of the essence.
None of the foregoing is intended to be or should be construed as giving legal advice. Every situation is different and you should consult with a licensed attorney for legal advice.
In your experiences, have you come across oil spill situations where the homeowner had either chosen or forced to go the bankruptcy route? I've done a lot of research, and from what I've read, bankruptcy can get a homeowner out of environmental liabilities (at least it's gotten many of corporations out) but it's a state by state basis. In my case, I would assume the bank (mortgage) and insurance company would fight it out if I file chapter 7 and walk away. Just trying to see if anyone has had any actual experience with this type of situation. Also the cleanup has not been performed, so the bankruptcy would be based on "projected future costs" for the clean up. Most of my research pointed me towards corporate bankruptcies, and not homeowners. any feedback would be appreciated.
In the process of selling our townhouse, we did a soil test at the request of the buyer because we have an active in-use UST. It failed and the results showed that soil contamination is above 5100 ppm and requires remediation. I've short-listed 2 vendors (both licensed by NJDEP) for the soil clean-up. Both gave very different advice about when to contact our homeowner insurance underwriters.
We live in an urban area where the oil tank is under dirt and can be easily removed without digging through concrete, but only 2 feet away from the town sidewalk and 2 feet away from the neighbor's property that is covered in pavers.
2 questions:
1) If the contamination crosses into the neigbor's property, the city sidewalk or the water table, can the insurer deny coverage based on the "pollution exclusion clause" eventhough we have 3rd party coverage?
2) Should we contact the insurer NOW before we decide on the vendor and start digging the oil tank up? Each vendor has very strong, differing advice about this. One said let the insurer know asap, BEFORE we dig the tank up so that they have no grounds to deny our claim for "failure to notify them as soon i knew the results", and so that they can choose to send their people over during the tank removal process to ascertain if there is 3rd party coverage issues and we don't need to waste time during the dig. Second vendor said don't tell insurer until AFTER we dig the tank up and ascertained that it has crossed property lines. Because if it didn't cross property lines or hit groundwater, they won't be involved anyways and they'll just use as a reason to raise our premium.
In the process of selling our townhouse, we did a soil test at the request of the buyer because we have an active in-use UST. It failed and the results showed that soil contamination is above 5100 ppm and requires remediation. I've short-listed 2 vendors (both licensed by NJDEP) for the soil clean-up. Both gave very different advice about when to contact our homeowner insurance underwriters.
We live in an urban area where the oil tank is under dirt and can be easily removed without digging through concrete, but only 2 feet away from the town sidewalk and 2 feet away from the neighbor's property that is covered in pavers.
2 questions:
1) If the contamination crosses into the neigbor's property, the city sidewalk or the water table, can the insurer deny coverage based on the "pollution exclusion clause" eventhough we have 3rd party coverage? I don't believe so, however they may require you to pay to prove offsite contamination or groundwater contamination. Insurance companies have been trying more and more to put the costs on the homeowner. I would fight that hard, however, and get them to do the groundwater investigation. Once coverage is proven, however, they should develop a cost allocation between you, them, and any other insurance company that may have covered the tank in the past. They will do this by attempting to age-date the spill and using the date they added the pollution exclusion clause to your policy.
2) Should we contact the insurer NOW before we decide on the vendor and start digging the oil tank up? Each vendor has very strong, differing advice about this. One said let the insurer know asap, BEFORE we dig the tank up so that they have no grounds to deny our claim for "failure to notify them as soon i knew the results", and so that they can choose to send their people over during the tank removal process to ascertain if there is 3rd party coverage issues and we don't need to waste time during the dig. Second vendor said don't tell insurer until AFTER we dig the tank up and ascertained that it has crossed property lines. Because if it didn't cross property lines or hit groundwater, they won't be involved anyways and they'll just use as a reason to raise our premium. Most likely the insurance company will not cover the tank removal costs so that's not a factor in notifying them or not. From my experience things move more smoothly if you notify the insurance company before removing the tank. If they or their consultant can oversee the work directly, they can get moving on it faster and there will be less "we're not paying for this because you didn't inform us, because we think the contractor's rates were too high, etc." Also, the insurance company environmental consultant will give recommendations to the insurance company about what they see. You might see oil on the water table and the insurance company might ignore you without your evidence. The consultant will carry more clout.
What I will say is that when you remove the tank, DO NOT let the contractor dig any more dirt out than necessary, especially if you think you will trigger insurance coverage (groundwater impacts, offsite, etc). It makes it a real headache on the payment side of things. Insurance companies could claim that since the contractor proceeded without their approval and without running the costs by them, they won't pay the contractor. I've seen homeowners stuck with the bill when they've let contractors do additional work without the insurance company being on board. Even if the insurance company is onsite watching, still wait to do any additional work until you know whether you have coverage or not. If you have coverage, the insurance company will start their procedures to delineate the extent of the impacts. If you don't have coverage and with the tank so close to the neighboring properties, I'd wait until you know exactly how much, how far, etc. before digging around. I don't know how high the result was for the sample, but the impacts might clean up fast, and might not. Just depends on the various factors.
Would really appreciate your insights. Thanks.
Hi goodnightnj, I'm sorry to hear your tank leaked. My takes are above in blue - sorry if it's a bit rambling, I'm running ragged at work. As to the results, how close to the tank and to the neighboring properties was the sample and what was the result? From the distances you indicated, I'd be surprised if there weren't offsite impacts, but it depends on a lot of things. I hope the odds are in your favor! I'll keep an eye on this thread if you have any questions!
Thank you Kiru. Those are amazingly helpful answers! I agree with you about the insurer. Better for them to know about the dig, and have the option of having an insurance consultant/adjuster there to witness things so that there's less cause for dispute late. So as soon as i get a vendor signed up i'll let the insurer know.
Sorry for the impending ramble. It's hard to be succinct because there's just so many if-then-else in these scenarios.
This is my nightmare before xmas!! :-) Especially because you are right, the contamination is likely to cross property line and i'm worried that insurance won't cover. Here's why - i just realized that because I live in a townhouse that has been converted into a "condo" (3 other units in the townhouse, a total of 4 individual condos) the policy is actually a "condo-building policy.". Only the "condo-building policy" covers third party liability, and specifically says it doesn't cover "pollutants". None of our individual homeowners insurance for each of our 4 condos covers third party liability, because that is supposed to be covered by the condo-building policy. Have you seen cases like this in your work?
Second question - is there a legal time limit where we have to remediate? E.g., remediation MUST be completed by x months or y years by the legal requirement of the NJDEP? I cannot find this information anywhere.
Thank you Kiru. Those are amazingly helpful answers! I agree with you about the insurer. Better for them to know about the dig, and have the option of having an insurance consultant/adjuster there to witness things so that there's less cause for dispute late. So as soon as i get a vendor signed up i'll let the insurer know.
Sorry for the impending ramble. It's hard to be succinct because there's just so many if-then-else in these scenarios.
This is my nightmare before xmas!! :-) Especially because you are right, the contamination is likely to cross property line and i'm worried that insurance won't cover. Here's why - i just realized that because I live in a townhouse that has been converted into a "condo" (3 other units in the townhouse, a total of 4 individual condos) the policy is actually a "condo-building policy.". Only the "condo-building policy" covers third party liability, and specifically says it doesn't cover "pollutants". None of our individual homeowners insurance for each of our 4 condos covers third party liability, because that is supposed to be covered by the condo-building policy. Have you seen cases like this in your work?
Second question - is there a legal time limit where we have to remediate? E.g., remediation MUST be completed by x months or y years by the legal requirement of the NJDEP? I cannot find this information anywhere.
Yeah, I'd definitely hold off until after Christmas to even worry about it, unless your buyer is demanding you move ASAP.
Hm. So did the tank service the entire building or just your unit? Do you own the land the building is situated on or is there another owner or association? I've come across situations where even in these communities where people own the house but lease the land, the association puts all costs on the homeowner.
I'm betting that the coverage would come from the policy that has third party coverage, i.e. the "condo-building policy". Do you know, did they ever at any time cover pollutants? I don't know how long you've been living in your home but insurance companies starting including the exclusion policy around 2006. But if you ever had a policy that did cover pollution, they are on the hook for that portion of time where they covered it. Also, they would go after any previous insurers of the property that did not exclude pollution.
If insurance doesn't cover you, it might be worth doing some looking into previous insurers of the property... not sure exactly how to do that but there must be a way if the insurance companies can do it. Maybe you could pursue those previous insurance companies yourself, though I would only recommend that if you face $100k+ of remediation cost. Otherwise the lawyer fees might not be worth it. I think it's worth a call to an insurance adjuster or someone with experience handling these types of insurance claims. I've PM'ed you the name of an outside adjuster I've worked with in the past. They might be able to guide you a little bit in the process. They work on behalf of several insurance companies, so you wouldn't be tipping your hand to your insurance company yet.
As to the timeframes, I know the unregulated heating oil tanks are not subject to the regulatory and mandatory timeframes, which is good. I believe this is the way it will work for you: Say you take the remediation in steps and at the end of each step, you submit a report. Well, after each report submission, the NJDEP will review the report and respond with any comments they have, noting any deficiencies or just approving the report. In that response letter they will provide a date that they expect to receive your next report for the next phase of work. If, on the other hand, you end up completing the entire remediation in one phase, you'll submit a Remedial Action Report, in which case, if there is nothing wrong with the report, you'll receive the No Further Action letter.
These days, with the Unregulated Heating Oil Tank program ("UHOT"), most reports sent in are the Remedial Action Reports. It's only when a site is very complicated or if it doesn't qualify for UHOT that multiple reports (Site Investigation, Remedial Investigation, Workplans, etc) will be sent in.
If you do absolutely nothing.... I'm not sure. I know they'll come after non-residential sites, but I'm not sure about residential. I would assume they'd eventually send out a letter to prompt you, but maybe not. I called the NJDEP to confirm the info on the timeframes and left a message. I'll let you know if they provide any different information from the above.
Last edited by Kiru; 12-17-2013 at 02:38 PM..
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environmental law
