By Samuel Butcher, LSP
Vice President, Loureiro Engineering Associates, Rockland
Environmental due diligence is an essential part of the residential property
inspection process, and understanding the problems you can run into and
which laws may apply can limit the likelihood that your residential deal falls
apart because of environmental problems.
Massachusetts law draws little distinction between commercial/industrial and residential properties regarding contamination. The Massachusetts Oil and Hazardous Material Release Prevention and Response Act, or “21-E” and its implemented regulations 310 CMR 40.0000, the Massachusetts Contingency Plan (or MCP) apply. The regulations require that owners or operators of property investigate the contamination to determine its source and extent, that you evaluate the risk associated with the contamination, and that you remediate it if necessary.
Evaluation of contamination can cost time as well as tens of thousands of
dollars. Confirming soil and groundwater conditions may require sampling the property through excavation or soil borings. If contamination is discovered, soil may have to be removed, fill material excavated and/or contamination addressed. In addition, the time associated with reporting the contamination to the Massachusetts Department of Environmental Protection and then completing the necessary paperwork to close the site out may take months. Both the time required and the nature of the
investigation can exceed what a residential property buyer will tolerate.
What REALTORS® Should Look For
Asking a few questions and looking at a property with a keen eye can help
you understand whether environmental concerns may be present.
How is/was the property heated?
Knowing where fuel oil may have been stored gives you a sense of
where problems might start. Look for evidence of staining around the fill port and around the tank itself where fuel oil might have entered the ground. In the mid-1970s many homeowners installed relatively large underground storage tanks as a hedge against fluctuating oil prices – was there ever a storage tank on the property? Was the
tank recently replaced? Gas heat now does not mean the house was always heated with gas.
Are there unusual odors in the building?
Foreclosed or abandoned properties often are shut tight until a potential buyer comes along. In this case, odors associated with spilled chemicals can accumulate becoming more noticeable. If you notice solvent odors, look in the basement for evidence of paints, paint thinners, solvents, or other chemicals dumped down a drain or, worse, into a sump or dry well.
Do the grounds look okay?
Plants like healthy soil. Evidence of stressed vegetation (dead shrubs or grass) could indicate where chemicals were improperly discarded. Do-it-yourself homeowners and car mechanics often have an extra cup of paint or a little extra oil left over at the end of the job. Improperly discarding even small quantities of these chemicals can
lead to big problems, especially if this occurs over many years. If the property was filled as part of a development project, ask who did the work and find out about the source of the fill.
If You Suspect Contamination
Environmental contamination is not a showstopper any more than finding
a leaky roof during a home inspection might be. The key to addressing suspected contamination is learning how long it will take to address the contamination and how much it will cost.
Talk to an expert and ask questions.
In Massachusetts, Licensed Site Professionals (LSPs) are responsible for assuring that releases of oil or hazardous materials to the environment are addressed in accordance with applicable
regulations. An LSP should be able to walk you and the buyer through steps to help you better understand what your obligations are and what simple investigations might provide a better understanding of how big the problem really is. Oil staining near a fuel oil fill pipe can be an indication of a major spill or it can be evidence of a negligible overfill. The LSP should be able to help you quickly figure out whether you have a big or a small problem.
Understand the regulations.
Paraphrasing the MCP, you are responsible for contamination if you
currently own or operate a property where contamination is located or if you ever owned or operated the property. If you are buying a property, you could become responsible for any contamination that exists on the property once you take title even if you did not cause it. It is probably best to assure that all contamination is removed prior to closing.
Environmental problems do not have to squash a good deal and knowing how to address potential issues and seeking expert guidance might even make the difference between closing the door on a deal and closing the deal.