Entry
, last edited January 19, 2012Open or Closed, a LUST site is a LUST site. They represent a risk unless you have data to prove otherwise. If there is a closure on an adjacent site… great, good for them… your site is still at risk. Unless you review a report that documents the contamination is limited to soil in the area of the UST, or the contamination in the groundwater is not migrating to your site, the situation is a risk (REC). Explaining this to a client can be daunting at times because of the adjectives “Open” and “Closed.” As can be expected, a client will rely on the descriptions/categories created by the regulatory agency to be definitive. Unfortunately, those categorical descriptions are not reliable. This is where a consultant can shine or die. Our ability to explain the differences between arbitrary nomenclature and reality, and more importantly the risks associated with the assumptions imposed by the arbitrary nomenclature, can create a life long client or (if you fail to communicate effectively or the client refuses to see it) a distraught client that may never return. I have found the later is fine when the client does not want to understand, and just wants a piece of paper so he can move on to making money. We all like money, but if you don’t understand your risks, you’re going to get burned eventually.
Whether it is titled “Open” or “Closed,” an adjacent or proximate LUST site is a risk that should be highlighted for the client (i.e. a REC in a Phase I). You will have to use your own professional judgment and experience in the area of the site to determine what should be considered proximate. (Yes, I skipped gradient, preferential pathways, and many other little facets, but I'm not giving a lesson here, just making a comment.)
Many adjectives used in writing are misleading, it is best to stick to the facts. It is a LUST site, maybe it is “clean” = “Closed,” but the client needs to understand those two words are not mutual when it comes to contamination.
Scott
Comment
Agreed! I have had to update Phase I's completed by other consultants where the heating oil UST was identified in the report and the consultant stated it was "exempt." They did not explain what type of exemption applied (as they likely did not understand the regulations themselves) and did not call it out as a REC. When I updated the Phase I, the client became upset when I called it out as a REC, stating I was just looking for more work. I took the time to explain the regulations and why the UST was "exempt" from registration, but not regulation associated with potential release. Needless to say, your point is correct, there are a lot of clientele that do not understand the limits of the "exempt" classification. It does not help when they rely on consultants that do not understand the regulations either.
Another point, and risk taken by clients: I have encountered situations when I present my findings and recommendations to the client, he says "thanks I'll muss it over for a while." I later find out he contacted a contractor to remove the heating oil UST, the contractor said "it's exempt, we don't need to do the paperwork" (not knowing any better... or caring). This can have multiple fall outs later down the line if the regulatory agency wants to pursue it. Generally these "small" issues are overlooked (as the regulatory agencies are cash strapped and busy with big projects as is), but if your client (or you yourself as a consultant) are already in there cross hairs, this "small" thing could become a "big" thing. Occasional bad practice is not a good practice.
Anyway, back to your comment, a good consultant understands the misconceptions imposed by regulation language and know when to explain these misguiding definitions to a client. Good point.
Scott
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There are thousands of sites where tanks were closed before the 1980s either in place or without removing any contaminated soils. In many jurisdictions, tank closings were governed by Fire Marshalls (the reason we had USTs was due to concerns about fires and explosions). The Fire Marshalls often just required tanks to be filled with sand or water.
In NYC, it was common for parking garages to fuel their customers cars. These tanks were closed before the UST regulations were adopted so there is no record of these tanks. I've been involved in a number of sites where tanks were discovered during demolition which resulted in unexpected delays and costs.
One problem frequently encountered is that excavators in a rush to complete their work will combine all soil in one place. So instead of having a couple of hundred cubic yards of petroleum-contaminated soil, there is now a very large pile of contaminated soil that will dramatically increase disposal costs. I had one site in Manhattan where the co-mingling of clean soil and soil contaminated with heating oil increased disposal costs from $3MM to $9MM!
Now, some might also think that tanks removed from the 1940s to 1970s could not possibly have residual contamination because the oil would have been devoured by the bugs in the soil. However, this natural degradation requires oxygen which may not be present in paved areas, and the absence of other chemicals commonly found in gasoline that can be lethal to bacteria. Moreover, tank removals in the "old" days often left behind piping and other source materials. Ive encountered a number of old gas station sites that have continued to impact groundwater and create vapor intrusion issues in the new building that was constructed at the site (you wont believe how many donut shops have had this issue-though I would suspect people frequenting donut shops may have other issues besides vapor intrusion to worry about)
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