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by Rick Stryker
In the past twenty years, there has been much in the news involving hazardous
waste sites and contamination of the ground, air, and water. These situations
have involved spills and dumps of chemicals and other materials that have
left lasting marks on the property on which it was deposited and then seeped
beyond. And while these often involve giant manufacturing and industrial
processes, rural properties are not exempt by any stretch. Camp leadership
needs to know how this environmental liability can impact property, operations,
and values — both theirs and that of their neighbors.
Why should we care?
Federal environmental laws place the responsibility of cleanup on the
individual or organization that owns the property — first where the
contamination is discovered and then at the source — even if the owner
or generator is unaware that a contamination has occurred or if the practice
stopped before they bought the property. It's the classic game of
"hot potato." If you're holding it when the timer expires,
you're out. Only in this case, if you're the property owner
of a contaminated site, you get the first bill. If it's determined
that the source of contamination is on your property, then you get ALL the
bills. The idea here is that when a problem is discovered — in well
water, while monitoring wells, or in the course of an environmental checkup
— the property owner who makes the discovery has substantial (financial)
incentive to determine the source and pass the responsibility to the generating
property owner.
Small operations have nothing to worry about, right?
No, probably wrong. Common camp practices that could be unwittingly generating
a hidden waste condition might include:
- Burning CCA or creosote treated timbers or poles instead of having
them hauled to a landfill (see Building Principles, Camping Magazine,
July/August 2003)
- Vehicle and equipment junk yards
- Over application of pesticides, herbicides, or fertilizers
- A general dump with old construction debris, shingles, paint, appliances,
or equipment
- Dumping automotive chemicals (including antifreeze and waste oil, even
to kill the weeds!) on the ground
- Buried diesel, gasoline, kerosene, or other fuel tanks
These practices and situations certainly aren't restricted to camps.
Any property owner who operates, stores, or manages a fleet of vehicles,
a group of buildings, or large spaces of land may be unwittingly contaminating
his or her property, groundwater and that of the neighbors. Golf courses,
farms, junk yards, and vehicle repair facilities among others may all be
creating problems on their site and yours.
Well, who will know?
It is standard practice for lending institutions to require an environmental
assessment and clean bill of health as a condition for approving commercial
loans. This goes back to the idea that the current property owner is liable
for the cleanup of any hazardous conditions. In the past, relatively new
property owners (and lien holders by association) have been held responsible
for cleanup because the buyer failed to make a reasonable effort to determine
whether current or past land uses may have created a hazard or left behind
a waste condition. A standard procedure was developed by the American Society
of Testing and Materials known as a "Phase I Environmental Assessment"
or "ASTM E-1527." Successful completion of this assessment will
provide one of several required checks for an owner to establish that a
reasonable effort was extended to identify potential contaminating conditions
of the subject property as well as the surrounding area. The courts have
come to refer to this as the "Innocent Land Owner" defense. So,
groundwater or soil contamination is often identified in the course of the
transfer of your property or the transfer of neighboring property.
Gravity: Not just a good idea, it's the law.
Gravity is an engineer's best friend, because it is unfailingly predictable.
Gravity is the force of attraction between bodies and is usually first thought
of as a "down" force. For liquid waste of any sort lying on the
ground, that is indeed the first step. But after it has entered the soil,
gravity between the contaminant and the soil along with the normal downward
gravity combine to create underground flows of liquid. Simply put, you're
either uphill (and potentially a source of contamination for others), or
you're downhill (and potentially a target for contamination by others).
For example, say that a camp wants to use its real estate as collateral
for a loan. The bank would require a Phase I as part of the mortgage procedure.
Hydrocarbons (associated with fuels) are detected in groundwater samples.
The bank would immediately put a hold on the deal until the source and extent
of the situation is determined. Your environmental consultant would perform
an analysis and site investigation to locate the source, coordinate environmental
agency involvement, and develop a plan to clean up the contamination.
To use another common example, we have all seen septic systems that have
failed as evidenced by wastewater coming to the surface of the absorption
area. Another, much more sinister failure is when the untreated liquid finds
weaknesses in the material below the absorption area and flows directly
into the groundwater, moving without regard to property boundaries. If consumed,
the nitrates contained in wastewater can cause serious illness, most notably
"blue baby" syndrome. The presence of coliforms (among other biological
contaminants) can cause acute, prolonged, and sometimes life-threatening
digestive illnesses. Since they are odorless and colorless, neither of these
contaminants is detectable without specific lab testing until someone is
sick.
This sounds like an expensive mess!
Recall our earlier discussion about the "innocent land owner defense"?
More and more frequently, camp properties are changing hands in large dollar
commercial transactions. Unless they're paying cash, any buyer will likely
be required by their lender to obtain a Phase I report. If selling may be
in your future, commission a Phase I several years before you plan to put
the property on the market — so that you have an opportunity to identify
and correct conditions or practices that could derail the closing when that
time comes. Underground storage tanks (UST) of petroleums, oils, and lubricants
are common sources for potential groundwater contamination. Has your facility
ever had a UST? Was it removed in accordance with the state regulations
or just covered over? Think of it as an upcoming exam — fail to prepare,
and you are preparing to fail.
A buyer's perspective
If purchasing a camp or land for a camp is on your mind, expect to invest
at least $8,000 to $10,000 in a Phase I, regardless of whether you need
to borrow from a bank. We have yet to see any clean-up project cost less
than this so think of it as part of a thorough physical for the land. Make
your offer contingent on the seller cooperating completely with your consultant
and the property getting a clean bill of health — or that the seller
must remediate any findings BEFORE the land transfers. Be certain that you
allow sufficient time for your consultant to complete the work. Eight weeks
with no snow on the ground is a good minimum for the production and delivery
of a report with no significant findings. It will not be enough time, however,
if there are issues that must be corrected. If you're anxious about the
cost, you can even stipulate that the seller will buy the report from you
if the report derails the purchase. After all, if you don't buy the property,
the report is no good to you.
Lastly, don't be misled by the attractive appearance of a farm. Some of
the more spectacular land clean-up situations have involved USTs and dumped
pesticides, herbicides, or fertilizers resulting from "the way we've
always done things." Contaminants can (and usually do) move with the
groundwater beyond property lines and are then traced back to their source.
So even if there's no trouble on the property you're buying, folks downstream
could come knocking at your door some time later.
As you can see, this tempest can come and find you with little or no notice
and be completely of others' doing. As rural areas feel increasing pressure
of approaching development, more of these hidden conditions will be uncovered.
Your best approach is to be proactive. Identify potential problem areas
and correct those practices or conditions before they are identified by
a buyer or neighbor — current or proposed. Skipping this checkup could
be much more costly if you wait.
Originally published in the 2004 September/October
issue of Camping Magazine.
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