ENVIRONMENTAL AUDITS & SITE ASSESSMENTS DURING COMMERCIAL & INDUSTRIAL PROPERTY TRANSFERS

ENVIRONMENTAL AUDITS & SITE ASSESSMENTS DURING COMMERCIAL & INDUSTRIAL PROPERTY TRANSFERS 

https://sites.google.com/site/metroforensics3/environmental-audits-site-assessments-during-commercial-industrial-property-transfers

Today’s real estate market is largely influenced by environmental concerns.  Existing federal and state environmental laws have placed substantial potential liability on buyers and sellers of properties contaminated by hazardous or toxic substances.  

 The extensive environmental liabilities resulting from leaking underground storage tanks, buried industrial waste, poor quality fill material, improper handling of hazardous and non-hazardous materials, historic PCB usage/disposal, and onsite discharges or spills have significantly changed the way business is conducted with regard to the ownership, management, and transfer of real property.  Anyone having a financial interest in real estate needs to know if potential environmental problems may involve them in expensive cleanup and lengthy litigation.

It should be noted though that in addition to the contamination concerns there are several emerging areas, such as risks related to climate change, water shortages associated with droughts, environmental, social, and governance issues and vapor intrusion.

CERCLA (SUPERFUND)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, imposes liability on responsible parties, including but not limited to: present owners and/or operators of the facility, and prior owners and/or operators who owned or operated the facility at the time of disposal of any hazardous substance.  There are only three defenses available to CERCLA liability, with the most common being the “third party defense.” 

INNOCENT LANDOWNER DEFENSE & APPROPRIATE INQUIRY

In 1986, Congress increased the scope of this defense, creating a special class of the third party defense sometimes called the “innocent landowner defense.”  Innocent landowners can escape CERCLA liability if they acquired the property after the disposal of hazardous substance (among other qualifications), and at the time of the property acquisition, the defendant must have undertaken all appropriate inquiry into the previous ownership and uses of the property.  This is where the Phase I environmental site assessments (Phase I ESA) come in.

PHASE I ENVIRONMENTAL SITE ASSESSMENT

Lending institutions (or other entities with a potential interest in secured or unsecured properties that may foreclose on or otherwise assume operational control of contaminated properties) could be made financially liable for clean-up of the properties, whether or not they contributed to the contamination.   

The burden is on lenders and potential owners of real estate to make a duly diligent effort to research the environmental hazards on the property they acquire title to, foreclose on, maintain a security in, or assist in managing.  Prior to the calculation of property or estate taxes, trustees and managers of estates also have a vested interest in obtaining an accurate assessment of an estate potentially contaminated with hazardous or toxic substances.   

The Phase I Environmental Site Assessment evaluates potential and existing hazards and is an essential element in establishing “innocent landowner” status in property transactions.  It is the first step in evaluating a property’s environmental status and can help limit ultimate liability should the property be found to pose an environmental risk.

The ESA, at a minimum, accomplishes three goals: (1) identify sources of contamination; (2) locates pathways of contamination; and (3) identify receptors of contamination.

DUE DILIGENCE, ASTM STANDARD & PRELIMINARY ASSESSMENT

The advent of the routine Phase I audit was the result of this heightened awareness and the evolution of legal liability theory under the Superfund statute.  Although there are currently no federally enforceable requirements for conducting a Phase I to establish due diligence, state requirements and industry established guidelines, such as the ASTM Standard E1527-05 and the newly issued ASTM 1527-13 “Standard Practice for Phase I Environmental Site Assessment”, have been developed.  

 For instance, under the New Jersey Spill Compensation and Control Act, a person must perform a Preliminary Assessment, as well as a Site Investigation if potential contaminants or concern are discovered, to demonstrate “appropriate inquiry” in order to qualify as an “innocent purchaser.”

SITE INVESTIGATION & INNOCENT PURCHASER

METROPOLITAN’S personnel have performed hundreds of Phase I Environmental Site Assessments, Preliminary Assessments, and Site Investigations since 1990.  Our credentials far exceed the requirements of all major financial institutions and have been refined over the years to accommodate changes in legal guidance, client objectives, and state regulations.

METROPOLITAN’S SITE ASSESSMENT PROCESS

Properties are typically evaluated in phases, beginning with an ASTM Transaction Screening Investigation (TSI) for visual or agency listed evidence of potential contamination on the property.  A TSI offers a standardized approach to environmental due diligence that provides a generally acceptable degree of confidence about the environmental conditions of a property.

If the Transaction Screening Investigation identifies an issue of concern, or if sufficient information is not available to eliminate a potential issue of concern, then a Preliminary (Phase I) Property Site Assessment for visual or historic indications of potential contamination would be conducted.

If a Phase I Property Site Assessment does not identify existing or historic evidence of contamination, the site assessment is usually concluded without further investigation.

However, if evidence of potential contamination exists, then additional investigation may be recommended, including second-phase sampling and analysis programs or more rigorous historic and agency record investigations (Phase II Property Site Assessments).

If Phase II investigations confirm the presence of hazardous substance contamination, then further assessment and site remediation (Phase III) are typically recommended either to be completed prior to closing the property transfer transaction or to be adequately provided for in the valuation of the property.

METROPOLITAN also provides environmental consulting services to facilitate timely and cost-effective assessment of properties.  Among these services are technical review of third-party consultant reports (Environmental Record Reviews) and comprehensive reviews of client facilities and operations for compliance with environmental regulations and permits (Environmental Audits).

We recognize the importance of adapting our services to meet the unique requirements of our clients.

Environmental Auditing

Environmental auditing has emerged as an important and integral part of environmental management systems.

Audits serve as a management tool to help measure a facility’s or company’s environmental performance against environmental regulations, as well as internal company policies and operational procedures.

In addition, environmental audits can provide a level of assurance to senior management that the activities at their facility or organization do not pose an unreasonable risk to the company or the environment.

The process can assist a corporation and its officers in limiting liability by identifying potential problems and recommending corrective actions.

The auditing process is designed to

1.    verify compliance with corporate environmental requirements;

2.    evaluate the effectiveness of existing environmental management systems; and

3.    assess risks from regulated and unregulated materials and practices.

Environmental audits are also typically performed prior to acquisition of an operating business.

As part of an environmental audit, METROPOLITAN can evaluate a facility’s regulatory compliance status and advise corrective actions. The regulatory compliance aspect of the environmental audit includes:

·         A detailed walk-through inspection of the facility;

·         Review of all environmental records made available from the client;

·         Review of applicable management practices, federal, state and local laws, rules and regulations, and standards; and

·         Interviews with persons responsible for implementing the environmental programs on site.

Specific components of a typical METROPOLITAN Environmental Audit, which are based upon these elements, include:

·         Summaries of the items reviewed;

·         Discussion of environmental issues and audit results including historic and potential problems and noncompliance areas; and

·         Recommendations for actions which would bring the facility into regulatory compliance and resolution of environmental problems.

After the initial environmental audit, METROPOLITAN can perform periodic audit updates to assist in keeping the facility in regulatory compliance, or undertake supplemental activities necessary to bring the facility into regulatory compliance

Environmental Record Review (ERR)

Third-party environmental documents are frequently submitted to our clients.  These documents may present complex findings, incomplete documentation, or conclusions for further investigation or site remediation.

METROPOLITAN can interpret the technical findings and evaluate adequacy of the documents with respect to the concerns or interests of our clients.

One frequently requested peer review service provided by METROPOLITAN is an Environmental Record Review (ERR). An ERR includes a review and written summary of third-party environmental reports to provide our clients with an independent opinion of technical adequacy and findings of the reports.

We give particular attention to evaluating evidence of hazardous or toxic substance contamination.

The ERR typically includes a chronology of significant findings, a summary of identified issues or potential problems, recommendations for further investigation or causes of action, and a statement defining the limitations and assumptions of the analysis.

Transaction Screening Investigation

A Transaction Screening Investigation is usually undertaken to provide a scoping level of environmental assessment for virtually all property transfer transactions.

A Transaction Screening Investigation may also be initiated when a client has made a preliminary determination that the value of the property or other circumstances contraindicate initiating a full Phase I Property Site Assessment unless sufficient cause for further investigation can be demonstrated.

Findings of the Transaction Screening Investigation report may dictate that a Phase I Property Site Assessment is required or may provide sufficient information that a lender may decide to discontinue further environmental assessment activities.

In some circumstances, Transaction Screening Investigation reports may be appropriate for updating earlier Phase I Property Site Assessments to confirm that conditions have not substantively changed on a given property.

The scope of services for a typical Transaction Screening Investigation includes a site inspection; review of historical information from site records; and preparation of a written technical report with findings of the investigation, as well as conclusions and recommendations for further investigation, if necessary.

Although requirements for individual site studies vary, and supplemental assessment activities may be prescribed by individual clients, minimum standards have been established by the American Society for Testing and Materials (ASTM) standard practices for a Transaction Screening Investigation (E 1528-96, Transaction Screen Process).

The Transaction Screening Investigation specifically would not include

·         review of historic property ownership records;

·         review of historical aerial photographs and city directories;

·         communications with agencies for available records of past spills, discharges or disposal of hazardous materials;

·         communication with utility companies; or

·         review of hydrogeologic data or other supplemental activities typically conducted during a full Phase I Property Site Assessment.

If the Transaction Screening Investigation were to reveal evidence of contamination or potential contamination or conclude that insufficient information was acquired during the Transaction Screening Investigation to adequately address an environmental issue of potential concern, recommendations for a Phase I Property Site Assessment would be provided in the Transaction Screening Investigation report.

Preliminary (Phase I) Property Site Assessment

A Preliminary (Phase I) Property Site Assessment is an investigation undertaken to evaluate properties for the existence, reasonable potential existence, or future potential for hazardous or toxic substance contamination.

The scope of services for a typical Phase I Property Site Assessment includes

·         A specific on-site investigation consisting of a pedestrian survey be performed.  Representative photographs of the subject property and adjacent properties will be taken to document conditions at the time of the on-site investigation.

·         review of historical information from site records and regulatory agencies;

·         preparation of a written technical report with findings of the investigation; and

·         conclusions and recommendations for further investigation, if necessary.

Although requirements for specific sites vary and individual clients may require supplemental assessment activities, minimum requirements have been established by practicing professionals and have been institutionalized in pending legislation.

Minimum standards have also been established by the American Society for Testing and Materials (ASTM) standard practices for a Phase I Environmental Site Assessment (E 1527-97, Phase I Environmental Site Assessment Process).

Phase I Property Site Assessments do not typically include soil or ground water sampling or analysis activities unless specifically requested prior to the investigation, or mutually agreed upon during the course of the investigation.

If the Phase I Property Site Assessment were to reveal evidence of potential hazardous substance contamination, recommendations for further investigation (Phase II Property Site Assessment), mitigation, and/or remedial actions would be recommended in the Phase I report.

Phase II Property Site Assessment

Previous investigations or activities, including Phase I Property Site Assessments or accidental discovery of suspected contamination, may require a sampling and analysis program (Phase II Property Site Assessment) to confirm or characterize the suspected areas of contamination.

Phase II programs usually include subsurface investigations for the purpose of collecting soil and/or ground water samples to be analyzed for suspected contaminants; however, Phase II investigations may also include sampling of surface waters, interior or exterior emission sources, soil gases, or multiple other focused assessment activities.

METROPOLITAN’ Phase II field investigations are designed and directed by geologists and professional staff with expertise in environmental site characterizations of all kinds, both above and beneath the ground water table.

Our professional staff adheres to rigid quality assurance and control guidelines set by industry, regulatory, and METROPOLITAN standards.

Field investigations are conducted in compliance with federal, state, and local regulations, including notification of appropriate regulatory agencies, acquisition of all necessary permits, and preparation of a field safety program.

Representative soil and ground water samples are obtained following strict sampling protocol. The samples are transferred by standard chain-of-custody to certified laboratories for analyses.

Coordination with the client is maintained throughout the entire investigation to assure that any difficulties or unsuspected findings are resolved as soon as possible.

After completion of field and laboratory data analysis, a final report is prepared to summarize the investigation and to make recommendations and conclusions based upon the findings.

If the Phase II investigation were to confirm the presence of significant contamination on the property, then recommendations are typically provided for further investigation, if necessary, to delineate the vertical and lateral extent of contamination or to implement site remediation alternatives for cleanup of the contamination in conformance with the requirements of responsible agencies.

Site Remediation

If site remediation is indicated from the Phase II investigation, METROPOLITAN can assist clients with site characterization and management of remediation activities.

Site remediation may include any of the standard or innovative techniques such as

·         granular activated carbon adsorption,

·         oil-water separation and free product recovery,

·         biodegradation,

·         solidification and stabilization,

·         vapor extraction,

·         incineration,

·         barrier walls (either passive or active),

·         in-situ chemical injection treatment,

·         waste reduction/filtration techniques, or

·         excavation and off site treatment and disposal.

The feasibility of any particular site remediation technique depends upon site specific conditions such as the nature of contaminants, regulatory requirements, and other factors such as cost, potential future consequences, pending regulations, and community concerns.

Key Changes to ASTM E 1527-13

The All Appropriate Inquiries Rule at 40 CFR Part 312 (“AAI Rule”) protects prospective purchasers of property from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for certain environmental conditions if the prospective purchaser conducts an investigation that meets the requirements of the AAI Rule.   

The AAI Rule provides that prospective purchasers who comply with specified industry standards issued by the American Society for Testing and Materials (“ASTM”) are deemed to have complied with the AAI Rule.  On December 30, 2013, the U.S. EPA formally recognized a new standard (ASTM Standard E1527-13) to demonstrate compliance with the All Appropriate Inquiry (AAI) Rule when conducting Phase I Environmental Site Assessments.  

 The ASTM E1527-13 Standard is similar to the previous ASTM E1527-05 Standard and was issued by ASTM International in accordance with its protocol for review of its standard practices and guides.  The EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527–13 standard; however, the old standard is not yet invalid for purposes of AAI and won’t be until EPA formally amends the AAI Rule to remove the current reference to it.  The new Standard introduces several changes to the Phase I assessment process.

Key Changes to the Standard

There are three major changes in the new Standard: 

Changes to the definitions of Recognized Environmental Condition (REC) and Historical Recognized Environmental Condition (HREC), and the introduction of the term Controlled Recognized Environmental Conditions (CRECs). 

1.    Clarifications regarding vapor migration/intrusion assessment requirements.

2.    Requirements pertaining to Regulatory Agency File Reviews.

The major changes are summarized below.

REC, HREC, CRECs

The new Standard revised the definition of the terms regarding Recognized Environmental Conditions.  The new Standard simplifies the definition of a REC, to align more closely with the AAI rule, as a release, a likely release, or a material threat of a release of hazardous substances to the environment on the property. The revised Standard also modifies the definitions of “release” and “environment” to more closely track the definitions of those terms as set forth in CERCLA.  Although the definition of a REC has been simplified, its application in practice should be largely unchanged.

The definition of an HREC has been modified to apply only to historic releases, which have been remediated to the satisfaction of regulatory authorities for unrestricted use.  Thus, the new Standard limits an HREC to past releases that do not subject the property to any use restrictions, activity and use limitations (AULs), or other engineering or institutional controls.   

The new definition also requires that the environmental professional evaluate whether releases that were addressed in the past may be subject to revised cleanup criteria that could require further remedial action (if residential criteria has become more restrictive the HREC could potentially become a REC). Although some environmental professionals routinely conducted an analysis of current regulatory cleanup standards for HRECs, the new Standard makes this exercise mandatory to comply with the AAI Rule for the first time.

Following the revised definition of an HREC is the new category of releases called a CREC. This term is newly added to describe releases that have been addressed to the satisfaction of regulatory authorities, but from which residual contamination has been permitted to remain in place subject to the implementation of use restrictions, AULs or other institutional or engineering controls on the subject property.  Because a CREC is a new type of REC (whereas the new definition of an HREC is no longer considered a REC), the new Standard requires that the condition also be identified as a REC in the conclusions section of the Phase I report.  

Under the prior standard, these types of controlled, known conditions were often characterized as HRECs, since regulatory closure had been achieved.  These conditions are now considered RECs, and may have a practical impact on transactions in the form of financial holdbacks or escrow demands, insurance coverage exclusions or limitations, or requests for sale price or lease concessions.

Vapor Migration

The new Standard indicates the need to clarify that the potential for vapor migration must be considered in the Phase I report.  The definition of “migrate” now expressly includes releases that migrate in the subsurface as vapor. Consultants preparing Phase I assessments under the updated standard will need to assess possible indoor air quality impacts from vapor intrusion pathways if there is subsurface soil or groundwater contamination at or near the subject site.  The standard explicitly states that ASTM E2600 is not a requirement of a Phase I ESA (E1527). ASTM E2600 is a separate, more comprehensive assessment of vapor migration.

Agency File Reviews

If a property, or an adjoining property within the required search distance, appears on a federal, state or tribal record, the standard requires, within the environmental professional’s discretion, the review of “pertinent regulatory files and/or records associated with the listing.” If the environmental professional chooses not to conduct a file review, he/she must document the reason(s) for this decision in the Phase I report.

The practical impacts of the file review requirement are likely to be on timing and cost.  Agency file reviews can often take several weeks (or months, in some jurisdictions), and could add additional unforeseen costs to the Phase I assessment process.  The file review requirement could dramatically increase the probability that a Phase I assessment is not truly complete at the time of closing. 

Other Revisions

The Standard also indicates a review of title and judicial records for environmental liens or AULs continues to be a User (Client) requirement that is to be conducted by a title professional. The environmental professional may conduct this work instead of the user, but does not have an affirmative obligation to do so. These user responsibilities are now mandatory, and the user must also consider its own specialized knowledge, commonly known or reasonable ascertainable information about the property, and the degree of obviousness of the presence or likely presence of releases or threatened releases.

Conclusion

EPA believes that ASTM E1527-13 improves upon the previous standard and reflects the evolving best practices and level of rigor that will afford prospective property owners necessary and essential information when making property transaction decisions and meeting continuing obligations under the CERCLA liability protections. 

In particular, the new ASTM E1527-13 standard enhances the previous standard with regard to the delineation of historical releases or RECs at a property and makes important revisions to the standard practice to clarify that all appropriate inquires and Phase I Environmental Site Assessments must include, within the scope of the investigation, an assessment of the real or potential occurrence of vapor migration and vapor releases on, at, in or to the subject property. 

While this rule does not create additional regulatory requirements, prospective purchasers of property should be aware of the changes and potential impacts.

PCBs – A Question of Due Diligence

The use of polychlorinated biphenyls (PCBs) was widespread before 1977, and the health risks associated with PCBs are well known.  PCBs have been widely studied, analyzed, regulated, and managed since the Toxic Substances Control Act (TSCA) was passed in 1976.   

Over the nearly four decades since 1977, PCBs have been found in a wide variety of building products, including sidewalk caulk, window glazing, expansion joints, crack sealants, caulks used as gaskets, surface coatings (e.g. paint), and caulks used between masonry blocks, among other uses. Much of this material still remains in excellent condition, and largely as it was the day that it was installed. This remarkable durability of PCB caulks is a testament to the physical and chemical properties of PCBs!

EPA has studied PCBs in caulk (including surface coatings), investigated PCB caulk in school buildings, and developed regulations and guidelines for PCBs in caulk when discovered. However, EPA does not require commercial landowners, States, or municipalities to test for the presence of PCBs in caulk. PCBs are only regulated in caulk and building materials contaminated by caulk when discovered. In some instances, municipalities, private lenders, and public lending agencies require testing for PCBs in caulk. However, there still remains no Federal requirement to do so.

PCBs in caulk are a problem from both public health and landowner perspectives. From a public health perspective, the health risks of PCBs themselves are well known, and the presence of PCBs in caulk have been found to create significant human and ecological exposures. However, the risk of PCBs in caulk in the built environment has not been fully quantified. In addition, the scope of the problem -the amount of affected caulk that is out there – is entirely unknown.

What This Means To The CRE Industry

For a commercial landowner or prospective purchaser…“when discovered”…presents a problem. Should PCBs in caulk (>50 ppm PCBs) be discovered, the caulk is not an approved use under TSCA, and the caulk has to be removed as a PCB bulk product waste (40 CFR Part 761.62). Porous surfaces such as masonry that are contaminated  may continue to remain in use for the useful life of the material as long as encapsulated using the methods required under 40 CFR Part 761.61. 

Such a task is neither simple nor inexpensive, and can require a small army of environmental consultants, attorneys, and contractors to complete. When purchasing an older commercial building, the purchaser has a voluntary decision to make during due diligence: to perform a PCB Caulk Assessment or not (health concerns aside).

Since there is no obligation to test for PCB caulks (other than to provide a safe environment for building occupants), the purchaser or landowner may never have to identify, manage or dispose of PCB caulk and affected porous surfaces. As a result, its presence could result in no financial exposure if never discovered.

On the other hand, if PCBs are discovered after closing or during demolition/reconstruction, PCB caulk could create a significant regulatory requirement to remove the caulk and manage affected materials in the middle of a demolition or renovation project. Even worse, PCBs could be discovered after a renovation has been completed, necessitating remediation of a newly finished space.  

Such scenarios have far reaching implications. Discovering caulk “after the fact” can have dire consequences. The potential for an unexpected cost exposure can have a big impact on budgets, schedules, and asset values. The not insignificant cost of dealing with PCB caulk can disrupt financing, and wreak all manner of havoc with respect to third party liability, insurance, building occupants, and regulatory compliance.

Even if not discovered during ownership, a new prospective purchaser may perform a PCB Caulk Assessment during future due diligence, develop a remediation estimate, and demand a purchase price reduction to pay for the cost of its management and disposal. If the deal falls apart, the presence of PCB caulk is then a known condition that needs to be disclosed to the next buyer, potentially devaluing the asset. In addition, a known condition may not be insurable.

The issue of PCBs in caulk will not go away. The problem is that these caulking materials could be anywhere in the United States, they slowly dust and off-gas into the indoor environment, leach over time to adjacent masonry, other surfaces, and even to soil, sediment, and storm water. PCBs from caulk have also been found at significant concentrations in indoor air. If PCBs that have leached from caulk are found in soil, the soil should then be regulated as a PCB remediation waste (40 CFR Part 761.61).

At the present time, the EPA has not adopted an approach to require testing PCBs in caulk. Even if a requirement to test caulk for PCBs emerged, the regulators don’t have the resources or personnel to manage the large volume of work plans, reviews, and approvals necessary to manage the issue. Since TSCA is a Federal regulation, states and municipalities don’t have the authority to make decisions for the EPA. Such a regulatory log jam on the Federal level is unthinkable.

The decision to test or not test for PCBs in caulk belongs to the purchaser during due diligence. The risks of not testing include 1) buying a building with a hidden health hazard, and 2) buying a building with a hidden financial liability…often a big liability. The risk of testing includes incurring a significant expense now that may never otherwise come to fruition because PCBs may never be identified. Given that this caulk is not painted bright red to signify its presence, it represents an invisible potential health hazard and financial liability.

For the EPA, the issue of PCBs in caulk is the classic hot potato: the scope of the problem is unknown, may be vast, and there may not be a cost effective and logistical way to deal with what may or may not be a significant public health issue. PCBs in caulk are an emerging issue. Should you chose to avoid it, the likelihood that PCBs will be discovered at some point by a contractor, employee, or other party is ever increasing. So, you are on your own. Given this framework, you can seek opinions, but the decision is yours to make.

PROJECT SUMMARIES

ASTM Transaction Screen, Conducted on behalf of a local Commercial Lending Institution (2014) Four-Story Residential Apartment Building, Trenton, NJ

Historical information (Sanborn Maps) indicated that the Site has been occupied by the current four-story residential apartment building since at least 1887. Based on the outcome of the TS, METROPOLITAN concluded that additional inquiry of the property was not warranted.

Environmental Liability Review - Real Estate Investment Trust, Nationwide

For a confidential nationwide real estate investment trust (REIT), METROPOLITAN provides third-party review services evaluating all aspects of potential environmental liabilities associated with the potential property acquisition.  Within an aggressive timeframe to complete environmental due diligence, METROPOLITAN reviews environmental site assessments completed by others and evaluates a wide range of environmental information pertaining to the property for this REIT.  Environmental reviews of manufacturing, residential, and commercial properties in New York, Miami, Jersey City, and Houston have been completed and environmental issues including historic spill cleanup, oil storage, mold remediation, and compliance with state regulations have been assessed.  Because of our independent analysis of site environmental conditions, the REIT has been able to manage potential environmental issues and successfully acquired numerous properties.

ASTM Phase I ESA, Conducted on behalf of a local Commercial Lending Institution (2013) Commercial Property, Newark, NJ

The Phase I Environmental Site Assessment recommended sampling of subsurface soil and groundwater to evaluate potential contamination associated with this Country Club setting for a number of current and/or former USTs.

ASTM Phase I ESA, Conducted on behalf of a local Commercial Lending Institution (2012) Manufacturing Facility, New York, NY

The Phase I Environmental Site Assessment concluded that further assessment of subsurface soil and groundwater was not required to evaluate potential contamination associated with a number of former USTs at the property.

ASTM Phase II LSI, Conducted on behalf of a local Commercial Lending Institution (2011) Trucking Facility, New Haven, CT

Upon conducting Phase II environmental sampling activities at this approximately 22-acre property occupied by a trucking company, METROPOLITAN concluded that additional inquiry was not warranted.

Property Acquisition - Confidential Real Estate Company, NJ

When considering the purchase of an unoccupied former mill building in Harrisburg, PA, this confidential New Jersey-based real estate company hired METROPOLITAN to conduct due diligence research. METROPOLITAN began with an ASTM Phase I ESA, which included a site visit, review of historical records, research at state and local government offices, and interviews with key individuals knowledgeable about site use and history.  Research found the mill had been used for various textile manufacturing operations for more than 100 years.  METROPOLITAN also reviewed previous environmental assessment activities conducted at the site, including the removal of two USTs. Our investigations concluded that there were no Recognized Environmental Conditions at the site, and the transaction could proceed unimpeded

Services and Solutions

• Due Diligence Support For Real Estate Transactions
• Environmental Site Assessments and Investigations
• Risk Assessments/Regulatory Closure Evaluations
• Feasibility Studies/Remedial Action Alternative Evaluations
• Site Remediation/Operation & Maintenance Services
• Emergency Response Services
• UST Removal/Closure Services
• Remedial Construction/Hazardous Waste Mgmt Services
• Landfill Compliance Services
• Specialty Services
• Environmental Health & Safety Compliance and Training

At METROPOLITAN, we're committed to help you achieve the results you need.  We welcome the opportunity to learn more about your upcoming project.  Contact Us.

Metropolitan Engineering, Consulting & Forensics (MECF)

Providing Competent, Expert and Objective Investigative Engineering and Consulting Services

P.O. Box 520

Tenafly, NJ 07670-0520

Tel.: (973) 897-8162

Fax: (973) 810-0440

E-mail: metroforensics@gmail.com

Web pages: https://sites.google.com/site/metropolitanforensics/

https://sites.google.com/site/metropolitanenvironmental/

https://sites.google.com/site/metroforensics3/

We are happy to announce the launch of our twitter account. Please make sure to follow us at @MetropForensics or @metroforensics

Metropolitan appreciates your business.

Feel free to recommend our services to your friends and colleagues.

Metropolitan Engineering, Consulting, Forensics, and Environmental Remediation Services. Construction, Investigation, Remediation and Forensic Expert Engineers

Construction Defects, Construction Claims, Engineering, Property & Casualty Investigations, Assessment, Site Investigation, Remediation, Litigation and Indoor-Air Expert Engineers

Bill Stephan, PhD, PE, CIH, CHMM, JD, MBA

Principal Engineer

P.O. Box 520

Tenafly, New Jersey 07670-0520

Phone: (973) 897-8162

Fax: (973) 810-0440

E-mail: metroforensics@gmail.com

______________________________________________________________________

Firm Overview

The engineering and forensic firm of Metropolitan Forensics and Consulting Engineering and Environmental Services was established for the purpose of providing a high value service to the insurance industry and to the insured companies or individuals. Our founding principal (Bill Stephan) is a licensed professional engineer in several states, including, New Jersey, New York, Pennsylvania, and Delaware.

We specialize in the in-situ remediation of petroleum and chlorinated spills, the defense of liability claims, the investigation and defense of first or third party insurance claims and the handling of subrogation claims.  We are also experts on oil and gas energy sector issues (design, investigations, construction oversight), renewable energy sector (wind turbines, solar panels, biofuels, etc), vapor intrusion evaluation, vapor phase and transport and in design on vapor mitigation systems.  Additionally, we offer forensic engineering services, including age-dating of contaminant releases, construction defects, oversight, evaluation of remedial alternatives, sub-slab ventilation system design and installation.  The list of our core services is:

• Cause and Origin Investigations
• Construction Failure Analysis (Residential, Industrial and Commercial)
• Structural Integrity Evaluation
  
• Site Investigation
• Tank removals and tank installations; licensed and insured to perform entire UST work
  
• In-Situ Remediation of Soil and Groundwater
  
• Vapor intrusion, indoor air evaluation and mitigation
  
• Causation
• Forensic Investigations (age-dating)
• Oversight
• Review of Remedial Action Work Plans
• Reserve Estimation
• Cost Allocation
• RAWP Preparation
• Site Remediation
• Cleanup Level Development and Negotiation
• Subrogation
• Expert Witness/Litigation Support
• Licensed Site Remediation Professional (LSRP) Services
• Construction Claims (Delay, Differing Site Conditions, Loss of Productivity, Acceleration, and others)
  

 





































Additional Specialty Service Areas

Age Dating
Boilers & Burners
Bridges
Building Codes
Building Inspections

Construction Accident
   Reconstruction
Construction Defects
Construction Delay Claims
Construction Surety Claims
Construction Disputes
Construction Differing Condition Claims
Construction Oversight
Construction Management
Construction Acceleration Claims

Construction Failures
Construction Injuries
Contractor Performance Issues
Corrosion

Defective Designs
Defective Roadway Design
   Evaluations

Earthquake
Electrical Accidents/Injuries
Electrical Equipment Failures
Electrical Fires
Elevators, Escalators
   & Conveyors
Embedded Software Hazards
   & Analysis
Equipment Failures
Errors and Omissions
Explosions
Failure Analysis
Fire
Fire Codes
Fire Protection Systems
Fire Suppression Systems
Flood Damage Assessment

Foundation Systems

Gas Systems
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Heating & Ventilation Systems
Heavy Construction
Highway/Roadway Design
Human Factors

Indoor Air Quality
Laboratory Services
Ladders, Scaffolding Falls
   & Failures
Lightning

Mechanical Defect Evaluations
Metallurgical Age Dating
Mold Causation
Natural Disasters/Weather
   Related Issues
Nuclear Energy
Occupational Hazards
   & Illness
Piping
Playground Equipment Injuries
Plumbing
Product Failures
Roofing Problems & Failures
Safety Codes
Safety & Human Factors
   Engineering
Scalding
Scene Mapping and Photographs
Sick Building Syndrome
Sports Equipment Injuries
Standardized Codes
Steam Systems
Subrogation Issues

Transportation Issues
Trips, Slips & Falls
Underground Storage Tanks
Utilities Expertise
Vibration
Water Damage
Windstorm

Mission Statement

Our mission is to work as an extension of our clients to expeditiously achieve the most economically favorable resolution of claims on their behalf and on behalf of their insured. We have developed and will continue to create new solutions to the technical problems and issues which are facing the insurance industry and the insureds today.  

Metropolitan provides forensic engineering work (age-dating or fingerprinting), site remediation, auditing, cost control and litigation support services to insurance carriers, their insureds and to private or public companies.  In its risk management role, examines, manages and audits environmental claims to ensure that assessment and remediation services provided to both carriers and policy holders are reasonable and necessary, properly rendered and appropriately charged. 

In its litigation support role, Metropolitan assists carriers and their counsel to ensure that litigious disputes are resolved fairly and reimbursement benefits are provided when appropriate.  The corporations service area includes the entire United States, with our corporate office located in Northern New Jersey.  The Firm's professional staff also travels regularly throughout the United States on assignment.

Forensics at Metropolitan

There are many issues associated with disputes over responsibility for cleanup. Who, what, when, where, and how chemicals were released can be investigated. The tools of forensic investigation include mathematical models, statistical models, fate and transport calculations, chromatography, lead isotope analyses, time of travel assessments, library search site characterization, tracer additives, and recently developed software applications.

Effective forensic project management should include an evaluation of multiple forensic tools based on site specific circumstances. The process of evaluation and the ultimate selection of the forensic tool are critical to a successful outcome. When project budgets allow, combining forensic methods for corroborative evidence can substantially strengthen your client’s position in an effort to prevent or support litigation. The effective forensic consultant must be well acquainted with an ever expanding list of analytical methods, environmental regulations, assessment procedures and remedial technologies.

The forensic field is one that utilizes a wide range of scientific tools to identify and characterize complex adverse environmental events. Some of the scientific disciplines involved in forensics include engineering principles (biological, physical and chemical), hydrology, lithology, geology, site history, site practices, mathematics, and statistics. These areas may be combined with technologies such as respiratory analyses, chromatography/mass spectrometry and chemical fingerprinting methods to answer complex questions with the ultimate goal of establishing responsibility for a particular event. Accurate, defensible forensic analyses are an essential component of any strategy that attempts to resolve the extent of the insurer or insured client responsibilities in the cleanup of contaminants.

Contact us online or call 973-897-8162 to learn more about our forensic services.

Property Damage Services at Metropolitan

Metropolitan assists property owners, claims professionals, businesses, and attorneys in   the assessment of the cause & origin (C&O), extent of damage and required restoration after pipe bursts, settlements, manufacturing and construction failures, fire, flood, earthquake, or storm damage.  Our teams of engineers have extensive experience in the many systems that make up a building including structural, mechanical and electrical systems.   We also have the necessary background to evaluate property damage to items such as communications towers or solar panels. We can help determine alternative, appropriate, and cost effective solutions for repair or restoration of any damaged property, both commercial and residential. 

Providing Competent, Expert and Objective Investigative Engineering and Consulting Services.

Our experts are multi-skilled, competent, and objective professionals who apply their analytical and common sense skills to reconstruct, determine the root cause, and document the events that give rise to property, casualty, and liability claims.  Thorough investigations and detailed measurements/research help us distinguish between pre-existing conditions and sudden and accidental losses.

Our investigations are:

·         Comprehensive & Accurate

·         Legible & Easy to Understand

·         Timely Performed

·         Delivered Quickly

·         Cost Effective

·         Clear & Concise

·         Developed by Professionals

·         Dependable

·         Our own uniform reporting system saves time and money.

Our Fast Track Investigation and Uniform Format Reporting systems allow us to conduct and deliver a comprehensive response to the assigned claim.  In most cases, we will obtain findings based on a site visit, visual observations, photographs, interviews, and field measurements.  Further investigations and testing will be provided upon request and approval by the client.

Forensic Investigation of Property Damage Claims

Metropolitan Consulting, Engineering & Forensics understands your need to complete a claim investigation accurately and efficiently as possible.  Whether it is accident reconstruction, damage due to environmental forces such as wind, water, hail, snow, tornado, etc.; fire origin & cause investigation or any other claim, the engineers at Metropolitan understand both you and your client want to resolve the claim.  The analysis you receive from Metropolitan will be accurate and complete, giving you the information needed in the claim adjustment and analysis.

Our services have extended beyond the forensic analysis phase into the remediation and repair phase of many large loss claims.  Upon the completion of the cause and origin (C&O) investigation, Metropolitan can provide our clients with complete working drawings and specifications needed to repair or rebuilt damaged buildings or other structures.  Metropolitan Consulting & Engineering’ staff possesses many-many years of experience in rehabilitation design, construction management, and project oversight to ensure the loss is restored in a timely and cost-effective manner without sacrificing quality.  Building code knowledge allows us to identify possible code upgrades as needed.  Metropolitan understands constructability and realizes making an insured whole goes beyond forensic investigation and design. We pride ourselves in providing practical solutions contractors can understand and follow.

At the forefront of available technology, we provide professionals and staff capable of handling a variety of engineering evaluations.  Our reports are clear, concise, complete and efficiently produced.  Our engineering objectives are achieved in an ethical manner consistent with the traditions and character of engineering professionals.

Contact us online or call 973-897-8162 to learn more about our property damage services.

Extensive Experience helping Sureties

Metropolitan also has extensive experience helping sureties fulfill their bond obligations resolve disputes after a contractor has defaulted.  This work includes the evaluation of contractor bid pricing, evaluation of the contractor’s ability to perform work, risk assessment, evaluation of termination, construction completion services, claim and litigation support services, loss recovery services, evaluation of payment bond claims, negotiation and settlement of payment bond claims, and construction defects investigation services.  Metropolitan has provided these services for commercial, development, educational, and assisted living projects.

Construction is a business fraught with risk.  Disputes over even the smallest of issues can quickly escalate, with crippling consequences to the project and the parties.  Over the years, the construction industry has developed various methods of contractually allocating the risk of project delay and disruption.  Some of these methods include liquidated damages provisions, "no damages for delay" clauses, mutual waivers of consequential damages, provisions that limit liability, claims notice provisions, and provisions addressing responsibility for the adequacy of the construction plans and specifications.  Parties frequently litigate the sufficiency of these risk-shifting efforts in conjunction with the underlying merits of delay and disruption disputes.

Construction Claims & Disputes

The most frequently encountered claims include:

1.            Construction Delay Claims

2.            Disruption and Loss of Labor Productivity Claims

3.            Design and Construction Defect Claims

4.            Force Majeure Claims

5.            Acceleration or Compression of the Schedule Claims

6.            Suspension, Termination and Default Claims

7.            Differing Site Conditions Claims

8.            Change Order and Extra Work Claims

9.            Cost Overrun Claims

10.         Unacceptable Workmanship or Substituted Material Claims

11.         Non-payment Claims (stop notice (or Notice to Withhold) claims, mechanics’ lien (only for private construction projects) and payment bond claims)

Forensic Engineering Experience Case Studies

Metropolitan staff has developed and utilized scientific methods to assist clients in a variety of ways related to their claim issues. The following is a partial list of such projects:

• Provided expert witness services for plaintiff seeking remediation of contaminated groundwater that caused indoor air inhalation problems;
• Testified that engineering and scientific evidence was improperly collected and analyzed and was inadequate to show the age of the release;
• Origin and cause of retaining wall failures.  
• Lightning damage to structures or electrical systems and equipment
• Roof failure or collapse as a result of accumulated load, additional weight and snow drift at hundreds of commercial and residential properties.
• Demonstrated that solvents in groundwater at client's property originated from off-site dry-cleaner and that client's site actually provided remediation for the off-site release of dry cleaning solvent;
• Expert witness for property owner impacted by industrial waste disposal from industrial manufacturer;
• Demonstrated that environmental analysis by a previous consultant for a manufacturing site was inadequate; as a result, the lender's concerns were alleviated and financing proceeded;
• Chemical "age-dating" and contaminant transport analyses of petroleum in groundwater at a gas station showed that contaminants originated from other parties;
• Age-dated petroleum release at a former gas station to show that the previous owner of the gas station caused groundwater contamination;
• Age-dated petroleum releases at an industrial facility to show that the on-site plume was the result of an off-site source;
• Prepared age-dating reports for over one-hundred residential fuel oil spills;
• Assisted insurance companies attorneys in defending subrogation claims; was able to demonstrate that the forensic data collected by the first party consultant were collected and analyzed using invalid methods;
• Demonstrated that structural damage to a residence was from a source other than the alleged high lake level
• Collected evidence (for the primary responsible party) that identified other responsible parties to share in the cost of a Superfund cleanup;
• Review of the site data at a bulk petroleum facility indicated that the site releases were not the result of regular oil transfer operations and that they were caused by the negligent actions of the insured’s agents; the case was settled in favor of the insurance company;
• Was able to demonstrate that the majority of the removal actions at petroleum release sites were neither reasonable nor necessary; as a result of our opinion, the insurance client settled the claim in favorable terms;
• At several drycleaner sites we were able to demonstrate that the age of the release was much earlier than the parties originally believed; as a result, the insurance client settled the claim at a fraction of the alleged liability;
• We performed numerous flood and wind damage assessments at commercial and residential properties.

Contact us online or call 973-897-8162 to learn more about our forensic engineering services.

Site Remediation Services

 Characterizing and remediating contaminated sites involve some of the most complex and difficult issues for environmental lawyers and their clients. Problem areas include responding to regulators; negotiating enforcement settlements; negotiating or litigating cost allocation and recovery claims; working with the insured or insurer client, lawyers and regulators to develop efficient, cost-effective remediation approaches; and selling, buying, or developing contaminated properties.

Metropolitan staff has developed and applied an innovative approach to the use of sodium persulfate for the sequential in-situ treatment of subsurface contaminants through chemical oxidation followed by enhanced biological degradation through sulfate reduction. This approach has broad applicability to a wide range of contaminants, and shows strong cost-saving benefits through reducing the initial volume of chemical oxidant necessary and enhancing the in-situ biological degradation of contaminants.

Through proper subsurface geochemical characterization and chemical dosing design, the approach focuses on utilizing the oxidant for immediate mass reduction at the source area, followed by degradation or polishing of the residual contamination using sulfate reducing bacteria.  Depending upon the oxidant activation method, this approach is applicable to petroleum hydrocarbons including both volatiles and PAHs, chlorinated volatile organic compounds (CVOCs) including chlorinated ethene, ethane and methane groups, as well as PCBs.

Contact us online or call 973-897-8162 to learn more about our Site Remediation Services.

Vapor Intrusion and Indoor-Air Studies

Vapor intrusion has received increased attention over the last few years near contaminated sites because some contaminants have the potential to migrate into nearby buildings and negatively affect indoor air quality. The accumulation of these volatile vapors in buildings can result in significant safety and health concerns.
To properly evaluate vapor intrusion a thorough evaluation of the building's ventilation system and subsurface conditions needs to be conducted by a knowledgeable professional in accordance with state and federal established procedures. 
The evaluation process typically includes a thorough building chemical inventory, the advancement of soil gas probes and the collection of soil gas samples. When indoor air quality problems are identified they can normally be resolved through the modification/installation of a properly designed ventilation system.
Metropolitan is well experienced with U.S. EPA and State vapor intrusion investigation techniques. We have completed numerous vapor intrusion and indoor air quality studies at commercial and residential properties. We have the experience to identify and resolve indoor vapor intrusion problems and the practical know-how to resolve indoor quality issues in an efficient and cost effective manner.
Contact us online or call 973-897-8162 to learn more about our Vapor Intrusion and Indoor Air Studies.

Metropolitan Engineering, Consulting, Forensics, and Environmental Remediation Services.

Construction, Investigation, Remediation and Forensic Expert  Engineers

P.O. Box 520

Tenafly, New Jersey 07670-0520

Ph.: (973) 897-8162

Fax: (973) 810-0440

metroforensics@gmail.com

Contact: Dr. Bill N. Stephan, PhD, PE, JD, CIH, MBA, CHMM

Insurance claim examiners, insureds, insurers, insurance adjusters and risk managers use Metropolitan for determining cause, evaluating the extent of damage, determining the age of the release, separating unrelated damage, analyzing loss scopes and managing restoration data, determining costs to repair, restore or replace, and preparing for insurance appraisals.

Attorneys call on Metropolitan for help when preparing for Litigation and Alternative Dispute Resolution such as arbitration and mediation