I'm curious how Phase I ESA professionals --and their clients-- are responding to the new ASTM E2790 Continuing Obligations standard.  Has anyone used it? Are any end users asking about it? 

It was a long and contentious process to get the standard completed. Where do you see room for improvement? What questions do you have about the standard? 

If you want to learn more about the standard, make sure you register for our free web event, ASTM's New Continuing Obligations Standard: What it Means For You, taking place October 6th. 

June 7, 2011 - CT passes legislatures passed S.B. 1243 establishing the Dept of Energy; which is now combined with the CT DEP. 

Under the Dept of Energy and DEP - grant money is now available (akin to brownfield grants) for entrepreneurs to bridge the gap ("bridge financing") for venture capitalists and equity investors to get new companies growing and creating jobs.  As a side-note - I would include 'clean tech' as a subset of high tech and part of renewable energy. (see previous blog entitled, Renewable Energy & Insurance Growth Opportunities).  I would also refer to Mike Kulka's blog on Detroit's recovery - referencing laser companies, etc. - as evidence that high tech and innovative technologies are going to assist in the recovery.

According to Rob Day of Black Coral Capital speaking at today's New England Clean Energy Council, "Financing Innovative Clean Technologies" indicated that 10-15% of venture capital (one of the largest % of VC) is being put into clean tech.  "Venture Capital Firms continue pouring money into Clean Tech."  $1Billion invested in 1Q of 2011.

Of course with clean tech (high tech / renewable energy) - comes the need for environmental expertise, capital and ... you guessed it - Insurance.  Professionals with experiene in these fields should do well to big to focus on offering your professional services.

Attended the NH DES Conference on Waste Management and the hot contaminant topic was Dioxane.  I found out that it's highly soluble, comes from numerous sources - landfills, chlorinated solvents, used since the 1950s and is a byproduct of ethoxylation (?) - stemming from detergents, shampoos and cosmetics.

3 ug/l standard as of now.

Other Major Topics - to be blogged about (time permitting):

1. NH DES cutting budget and job positions (MA DEP and MA gov't pay attention! we are in a recession!), decrease in staff, Federal funding of Brownfields;

2. VI - requiring 3 subslab soil/gas samples - 1 in center; if unobtainable - then samples must go deeper - but use every effort to get subslab;

3. DES one-stop!  Great resource!;

4. 3 contaminants updated: (i) Trans 1,2 DCE added, (ii) 1, 3, 5 TMB deleted, (iii) Ethylbenzen - dropped levels.

more to follow (hopefully).

Hingham Harbor, MA (May 6).  EPA fines Burham Associates (general contractor) $105k for subcontractor's work under the "Ocean Dumping Act."  Burnham Associates was facing fines of $3.4MM. 

The project was to dredge the Hingham Harbor and dump the uncontaminated sand about 18 miles out to sea from the Boston Harbor.  The sub apparently missed its target (2 mile wide) on 50 occasions.

Legal Liability - clearly the EPA can choose to hold anyone they want liable.  Hence the contractor, who arguably has no culpability, was held liable for the 'sins' of his subcontractor.  Additionally, and as important, is the fact that this DID NOT involve contamination (i.e. strict liability) but simply involved improper dumping of sand in the ocean (a violation of the Ocean Dumping Act).

Risk Management/Legal/Insurance

Lessons learned: When working with a subcontractor you need to clearly write into the work contract that the subcontractor will indemnify, hold you harmless and add you to their insurance policy(ies).  You need of course qualify the subcontractor (financial strength, reputation, experience, loss history) and then make sure you look to see if their insurance will adequately provide the limits and coverage you need for the project you are working on. 

The contract should be sure to address every possible contingent liability including FINES & PENALTIES.  Fines and penalties are insurable where allowable by law and when included in the coverage.  That is another point where an insurance and legal professional can assist in evaluating the value of the subcontractor's policy and the laws of the particular state.

Then... you also need to have your qualified professional research the laws of 'indemnity and hold harmless' agreements.  Each state has a different approach to such agreements, how they are interpreted and what specific language is needed to effectuate a transfer of liability. 

Depending upon the type of liability (and/or wording of the contract), some states will preclude such transfer of liability by way of contract.  Similar to their stance on 'fines & penalties' this stems from 'public policy' - wherein a governmental authority does not want to allow a party to force transfer certain liabilities onto another party due to their bargaining position.  That policy is weighed against the broader policy of 'laissez faire' - where the government permits private companies to contract as they please.

As you can see - it can get quite complex....

MA homeowner's are required by the DEP to have a safety valve or oil supply line with protective sleeve on heating oil systems that currently do not have them by September 30, 2011.