Beware the ooze

By Steve Schultz

After months of design, long nights of planning and creation of a clockwork schedule to build a new structure from barren earth, construction companies break ground in the hope that every detail has been planned.

But chances are that an unknown environmental problem on a job site will someday throw a wrench in a finely tuned project: abandoned underground tanks, discarded barrels of strange substances, soil laced with heavy metals or pools of petroleum seeping into groundwater.

The delay that such a discovery causes and the money spent on idled workers and equipment is enough to worry contractors without having to decide what to do with the waste itself. Although state officials say the number of incidents in which significant contamination is found on a site previously considered "clean" are limited to a handful of cases each year, they add that there are obligations that businesses should be aware of when the soil doesn't look quite right.

In the first minutes after pollution is found, contractors should immediately take stock of the situation. Intact barrels might not require as quick a response as a tank of toxic solvents punctured by a backhoe. Whether to contact emergency services, such as the local fire department, should take precedence.

Who you gonna call?

In addition, since March 1997, state law has required that the Wisconsin Department of Natural Resources be notified when hazardous substances are found to have leaked into the environment. If contractors know the department district the job site is located in, the regional headquarters should be notified, said Loren A. Brumberg, a waste management specialist with the DNR's Land Recycling Program in Eau Claire. Otherwise, contractors should call 800-943-0003, a hotline to the Madison headquarters.

Depending on the severity of the contamination, a local warden might respond to the site who can call on department specialists and spill coordinators for assistance. Also, the department has emergency response companies on call to provide statewide response within two hours of notification.

As important as the actions taken after pollution is found are the actions that are not taken. Larry L. Fox, president of Fox Environmental Services Inc. of Milwaukee, recalls an incident in which a contractor digging a foundation uncovered abandoned sodium at a work site. "Sodium is a very reactive compound that can burn immediately on contact with moisture," Fox said. "We got this panicked call from the contractor, who happened to know the consultant firm that I was working with at the time, telling him that he'd dug up some ground and it was burning. The critical thing was that the contractor stopped and waited until we got there so we could make appropriate decisions."

Getting 'hooked'

Ideally, contracts among contractors, developers and owners detail who is responsible for cleanup. However, Wisconsin law states that the two parties that must be involved are the one that caused the spill, such as the contractor, and the one that owns and controls the pollution itself, such as the title holder to the land.

"Contractors and owners, as many times as not, get hooked with the cost," said Jim P. Lonsdorf, an environmental attorney with Lonsdorf & Andraski S.C. in Wausau who was a member of the governor-appointed Brownfield Study Group. "What people don't understand in the world is that environmental issues are not so much fault based. People always think I have to have been speeding or not have looked. They have so much of this automobile-accident, tort-based thinking."

Regardless of liability, the next step is to select an environmental consultant to examine what a contractor has found. The consultant also will handle the responsibilities for working with the state. "Each project manager for the DNR has responsibility for hundreds of cases " I'd say about 250," Brumberg said. "They only follow the largest, most egregious cases on a regular basis and the rest they look at when they are ready to be closed out as cleaned-up. The consultant is very important in getting the site to that point."

Your friend the consultant

If enough time is available, companies should look at whether the consultants meet qualifications outlined in Wisconsin Administrative Codes, the number of years the company has been in business and examples of completed projects, according to those in the industry. In particular, someone with the consultant should be certified as a tank assessor by the Wisconsin Department of Commerce. The Department of Natural Resources maintains a list of environmental contractors that is available by calling 608-264-6009.

"A construction firm probably should do something they don't normally think about " develop a relationship with an environmental firm long before they go into the field," Fox said, adding that many firms typically don't charge for being "on-call" for an emergency. "If the construction firm could somehow network to have a relationship with an environmental firm, when they run into this problem, they will save themselves an awful lot of time and effort and it's very practical to be able to call someone up that you already know, that you already trust. You're in the middle of digging a foundation, you don't have time to mess around." Simply finding out how easy the information is to obtain can serve as a barometer as well. "Communication is always key in any project, especially when there is a lot of pressure and time and money considerations like construction projects," said Nova Clite, a professional geologist and senior hydrologist at consultant TN & Associates in Milwaukee. "You need to be comfortable with the consultants so that they understand your needs and what the project means to you."

Once a consultant is chosen, a three-step process is used. Under what is known as a Phase I Environmental Assessment, records are reviewed for background information, interviews are conducted if possible and physical inspections of the site are made. As part of the second phase, contamination is physically confirmed through laboratory analysis. Finally, a site inspection is done to determine the extent of contamination. From the site analysis comes recommendations for remediation.

Consultants can recommend either removing pollution or leaving it in place, resulting in varying degrees of disruption to ongoing construction. "This is where it sometimes gets to be a conflict in a construction situation, where there's tight schedules and any delay means significant money," Clite said of the actual remediation. "So a good consultant tries to be very responsive, work quickly, work closely with the construction managers."

Will it ever go away?

Even after a site is certified by the state, the contractors' headaches might not end. Companies can be stuck with at least a portion of the bill, making the need for contracts with specific language the best defense against unknown ooze.

"One of the difficulties in Wisconsin is that " and this is unlike some other states " there's no state law claim that you as a private party can bring against another private party," said Mark A. Thimke, a partner at Foley & Lardner in Milwaukee who practices environmental law. "The state can make a claim, but there's no statute that says if a later land owner or contractor pays the state for cleanup, it can go back after the really responsible party. That's why people who are savvy on this want contractual protections with indemnities because you can enforce an indemnity as a contract matter."

Despite the risks, contractors must confront environmental problems rather than hope they fade away.

"Don't try to cover it up," said Tom Bergamini, a principal and senior hydrogeologist with BT2 Inc. in Madison. "It's only going to cause you problems later. People think, 'Well, you know, the DNR's not here, no one will ever know.' Sooner or later, you'll need to sell it or want to sell it and then you have the real-estate requirements of full disclosure."