What are appropriate Due Diligence time frames?

One of the most common issues in buying and selling real estate is unrealistic due diligence time frames & settlement dates.  Settlement dates that are set PRIOR to any due diligence being completed is the biggest failure. If you are involved in real estate and the due diligence finds an Area of Concern (AOC) or a Recognized Environmental Condition (REC) 80% of the time the settlement date needs to be pushed back.

Quick example, completed Phase I ESAs for a site in New Jersey and Pennsylvania, both found potential USTs. Both required a geophysical, at one of the sites the property owner of 29 years swore there were no tanks, but they had zero paperwork to support that statement. Fast forward three (3) tanks were found between the two sites. Now you have to get NJDEP & PADEP permits and register the regulated tanks, both sites took about 50 days to get government permits.

Understand that Due Diligence has Many Layers and steps.

Take for example a farm being purchased that required a Phase I ESA, the due diligence period was set for 30 days with settlement on the 31st day.   The concern of the parties was whether the Phase I could be completed in 30 days, 90% of the time it can be, for the record most Phase I's can be completed in 2 weeks, sometimes 3 weeks.    But the real issue is the parties left no time for a Phase II, if required, and most all farms would require some form of a Phase II and that's coming from 30 years of experience.  Even if you tell people testing is likely going to be recommended, no one listens and no one extends the due diligence period, but everyone gets upset when they have to change the settlement date. Sure the seller could have done their own Phase I & II prior to selling the property and saved time and headache, unfortunately, few sellers are that forward thinking.

Let’s say, a property has had remediation completed, and multiple areas on a property were remediated. We just had a site that fits that bill.   A Phase I is still completed to protect the buyer but the Phase I has to review state environmental reports that were submitted, which can take 4 weeks to get copies of reports.  (Fact most owners have incomplete reports or cannot find the reports).   Obtaining records from the government is not quick and yes a one (1) month wait is not uncommon.  The 4-week due diligence period must be extended.  

On the site we just dealt with, which was commercial, it was disclosed that multiple AOCs had been remediated and closed out with the state.  But this site had other areas that were not remediated that warranted testing, multiple, like $42,000 worth of testing.  Granted the property was 10.7 acres, listed for close to 3 million dollars, so it should not be surprising that AOCs existed on the property and were not evaluated by the seller, I mean few people who own real estate want to find a problem. The buyer still wanted to proceed with testing and purchase, and the seller did.  Well, the seller ended the contract, they were concerned problems would be found they would have to address.  Now, did the seller side warn them that this scenario was possible, hard to say but I would venture a guess the answer is no.  Is the seller wise in thinking another buyer will come along to buy the property without testing? They can hope but are unlikely.  The buyer was more than upset that a deal valued in the millions would be stopped in its tracks due to their desire to test and ensure they were not buying a contaminated property.  The buyer also was willing to contribute to some amount of remediation.  

But let’s say the deal kept moving forward and the seller gave another 30 days of due diligence.  The testing could be completed in this 30-day window, but if remediation was warranted, 30 days is not enough.   But the seller says we can price out cleanup and negotiate a price reduction within 30 days.   Still an epic unrealistic situation as Phase II is just evaluating if contamination is present not the extent.  Say three areas out of 14 need remediation (an unrealistic low number but just play it out).    Your next step is to define the 4 areas which could take another 30 days maybe 90 depending on soil and groundwater.   This situation actually played out on another site and the due diligence was 9 and 1/2 months.

Pro Tip

All you bankers, real estate professionals, sellers, buyers, and lawyers listen up.  Ask your environmental professional what they would estimate for a reasonable due diligence, when a Phase I & II may be necessary.  Before you ask do not give them your desired date of settlement, you will likely bias their answer. Although as environmental professionals we are not clairvoyant, we can assess sites from a desk, and utilize experience from other sites we have evaluated many times before to say you may want to budget 60 days or 90 days, if it's less, well then you can settle sooner.  You should also consider if any cost sharing will occur with Phase II between buyer and seller and what the seller's pain point is on paying for remediation.   

For example, the client had a retail strip of stores with historic groundwater contamination. The economical solution was to monitor the groundwater for 8 quarters to show a declining trend and permit the contamination in place.    The 2-year budget was $86,000, which was also the amount the seller was willing to place in escrow after the sale for the buyer to use to pay for the work. But the $86,000 was a budget and could trend higher or lower.   This confused the buyer as well as the fact that there would be costs after the site is signed off that the owner would be responsible for and this is assuming groundwater trends lower. Some sites do not and you need to perform remediation to push levels lower.   This is another situation where all parties were not transparent regarding time frames and costs and what each party was willing to accept.

Last example and let me dumb this down for you.  

A residence had a leaking tank, which was discovered during due diligence.  The future cost of remediation was determined, what was not discussed was the time frame to remediate and when state would review and sign off (typically 2 weeks to 6 weeks to 2 months, depending on your state).     Well at settlement these time frames were discussed and the buyer backed out at the settlement table.  Now the blame on this one was the environmental company not timelining the remediation (parties not asking either).   People went in with blinders on and the deal fell apart.

If your due diligence finds environmental concerns, know that environmental has no drive-through lane, no same-day delivery, heck not even a delivery date.  Like medicine and law, it’s a practice, a somewhat inexact science, but data sets are out there if you are willing to listen.  So rather than say due diligence is 30 days, ask what the consultant thinks is the reasonable time frame.   Play out a couple of scenarios so all parties have an idea of what could happen, plan for the worst, and hope for the best.

Due Diligence Questions?

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No, auto repair, auto sales, car dealerships, and repair shops do not fall under ISRA regulations.   It is a common misconception that auto repair is an ISRA-regulated industry, perhaps because you are generating waste liquids and at one time in the past waste oil had a hazardous classification in New Jersey.  I say this because I have been asked this question going on 25 years.

Now a facility that performed auto repair and now operates as an ISRA-applicable business, can hold environmental liability for the ISRA-applicable business. You see operations of auto repair can have an environmental impact.   Inground lifts, ASTs, USTs, slop sinks, parts washing stations with solvents, floor drains, waste oil, etc. all are AOCs (Areas of Concern) for auto repair shops.  The USTs are generally covered under their regulations.  The other AOCs are things to be looked into for an ISRA evaluation.   NO matter what the current ISRA applicable business is, the ISRA will evaluate for the historical use of the property, which is taken under consideration when evaluating for AOCs. So, a solvent parts washing station used 30 years ago may end up being investigated under an ISRA, even though the current operations never used it, because the site did.

Compressor areas, which auto repair facilities have, and AST storage areas can also be an AOC, sometimes the AOC will require investigation, and other times visual assessment of these AOCs can remove the need for testing.

What businesses are most likely subject to ISRA?

ISRA is meant to hold certain businesses (manufacturers of anything typically) accountable for contamination caused to properties.  However, the law held companies accountable not just for anything they did but for whatever else happened on the site, even if it happened prior to their operation at the site.

The ISRA regulations base applicability on the business classification (NAICS Code).    But a business can be misclassified.  Say the business makes circuit boards (a regulated industry), but their NACIS code is tied to design.   NJDEP will view what the primary business is and trigger ISRA. 

The first step in the ISRA process is hiring an LSRP (Licensed Site Remediation Professional) to perform a Preliminary Assessment or PA.   The PA completes an audit of the property and allows the LSRP to assess the environmental issues of the property and ultimately provide an RAO (Remedial Action Outcome).  An RAO is the result of the ISRA process.

ISRA Experts

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ISRA Questions?

ISRA Process Explained

New Jersey Department of Environmental Protection (NJDEP) signed into law the New Jersey Site Remediation Act (SRRA) in May of 2009.  As of May 7, 1012, all owners or operators of a contaminated site RP’s (Responsible Party) must hire an LSRP, who will guide and oversee environmental activities at the site.

Generally speaking, you should expect that LSRP involvement will be necessary on any contaminant except number two (2)  heating oil. So, gasoline, kerosene, pesticides, metals, PCBs, hydraulic oil, etc., would have to have an LSRP oversee testing and remediation.

The regulation also changes what is known as an NFA (No Further Action) letter. Prior to the law, once you remediated a site you received an NFA. Now, NFAs are issued for UHOTS (Unregulated Heating Oil Tanks), heating oil discharges from USTs under 2001 gallons which are the unregulated heating oil tank definition pertaining to size.  So, all other sites now get a RESPONSE ACTION OUTCOME (RAO).

Before the LSRP program was implemented and after contamination or a release was identified, and the NJDEP had been notified, the Responsible Party (RP) was required to hire an environmental consultant who would investigate the contamination on the site, and ultimately provide remediation if necessary. This old approach would require owner consultants to submit reports to NJDEP and await a response, which could take months or years to receive a response.   It was a slow program for sure and many sites fell through the cracks with no driver from NJDEP requesting investigation and testing of a site, many properties had no work performed. For sites that made forward progress the NJDEP would issue a No Further Action Letter (NFA), which was the gold standard for closing out environmental contamination.

Since May 7 of 2012, all owners or operators of contaminated sites (Responsible Parties) must hire an LSRP since  The NJDEP would no longer oversee site remediation, and under the program, the LSRP is required to proceed without prior NJDEP approval.  Think of LSRPs as deputies of the NJDEP and are required to follow NJDEP regulations, while utilizing professional judgment to investigate and clean up a site.

Upon successful completion of remediation, the LSRP issues a RESPONSE ACTION OUTCOME (RAO).  No NFAs are issued any longer for sites that require LSRP involvement. So your end goal is an RAO for a typically commercial site that has contamination other than heating oil. The rub with the RAO is NJDEP has 3 years upon receiving the RAO to audit the RAO. So you can have a 3-year open window that the NJDEP may want changes to the RAO or disagrees with professional judgment and requires more work. Typically, NJDEP asks for changes to wording on forms, etc., at least for RAOs Curren has issued, we have seen RAS rescinded because some LSRPs are cowboys and stretch judgment regarding not having to follow typical protocols.

LSRP Questions?

RAO questions?

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Mold is a four-letter word, and it seems simple, right? Mold is indoors and outdoors, while outdoors it is needed to break down some parts of the environment, mold growth indoors can be very different. Molds are spores that grow in specific environments and can harm your health when found in abundance inside of your home.   When mold grows on organic indoor surfaces, it then can become airborne mold spores.

Why do you get a Mold Inspection?

A mold inspection is requested when mold growth is suspected. Mold growth is suspected when you either see a difference in color on an organic surface, or there is an odor coming from a room or area. Mold is also suspected if there is a leak somewhere on the interior of a property that was not properly fixed or fixed within 72 hours of the leak.

Mold Inspections are also requested during real estate transactions. During the home inspection, the home inspector may notice a “mold-like substance”, “discoloration” or “an odor that smells like mold growth”. Many home inspectors do not do mold testing, nor mold reporting and refer the buyer to have a mold inspection.

How is a Mold Inspection performed?

Mold inspectors differ in the way they provide mold inspections. An experienced mold inspector would walk the outside of the property and look at the grading towards and away from the building/home. The mold inspector would look for signs of water intrusion that would come from the outside of the property.

After the exterior of the property is thoroughly examined the mold inspection moves to the interior of the property. Once on the inside the area of concern is inspected. The area of concern would be certain rooms, rooms or it may be the entire property.

Once inside the property, the visual mold inspection looks for certain clues for mold such as discoloration, smell, and insects. Yes, insects seem to be around areas where mold growth is present due to the moisture. If requested, or suggested mold testing is done. Mold testing is done either by surface sampling an area where mold seems visual and is questioned, or when there is a finish area and there is a foul smell and there are no visual signs of mold and if someone is curious as to what type of mold spores are airborne.

Mold Testing

There are different ways to test for mold. Curren Environmental provides two types of mold testing, surface, and airborne testing. There are take-home tests that use petri dishes, and some other mold inspectors use a swab sample.

Mold Surface samples are acquired by placing the piece of glass tape side to the area of concern. The sample area is photographed and then placed into a container. That sample is taken to a laboratory where the mold spores are inspected under a microscope for mold spores.

Mold air sampling is acquired by using a small container, the size of a shot glass, and placed on a tripod at breathing height in the center of the room. A photograph of the sample area is acquired prior to starting the mold sample. The sample can be acquired for five minutes or ten minutes. Depending on the debris that is in that certain room, industry-standard most likely uses the five-minute sample (75 liters).

Photographing the area where the mold sample was acquired is a must, if this is not represented in the mold report, you will not understand where the mold growth is and where it is coming from. Also, from a mold remediation standpoint, you will not know how to quote mold remediation without photographs.

What is mold lab data, and do you read it?

Mold lab data is acquired after samples are dropped off at the lab of choice. Once the mold samples are looked at by the lab, lab data is generated. This lab data states the type of mold spore and the amount of mold spores.

Many mold inspectors only include lab data and say that is the mold report – it is not, it is just that mold lab data. You are not expected to read mold lab data and figure out where the mold is, how much mold you have, and why you have mold from lab data. For example, you go to the doctor to get blood work. You see your lab data first, the lab data says you have high cholesterol, so you kind of freak out. Once you speak to the doctor, your doctor says no, that it is not high because you do not have these other three underlying issues. So, you were incorrect, which is what we see with people reading lab data.

Mold will be in your house at some level, there are no mold-free homes. There are spore types that are extremely related to health issues and others that are not. It is not for you to figure out, but for your mold inspector to report and relate to you.

What does a Mold Inspection Report Detail?

Mold Inspection reports are not lab data from EMSL or EMLab or any other lab. A mold inspection is a detailed representation of the mold inspection that occurred on the property on the day of the inspection.

What should the mold inspection include?

• Photos, more photos & more photos
• Reporting on where the inspection took place.
• What was done at the inspection, such as Infrared, Air Testing, Surface Testing, etc.
• Whether or not mold exists.
• If mold exists, where is the leak/moisture problem?
• What and where the testing occurred, with clear photos of the actual acquired sample area.
• Discussion on the lab data, and what the lab data means in the perspective of mold growth and airborne mold spores on the property.
• If there is mold growth, recommendations for removal.

Mold reporting after the mold inspection paints a clear picture of what mold is to your property. Where the mold is, where it is coming from, and how to fix the water problem and the mold issue.

Mold Peer Review

A mold peer review is just that, reviewing the information that was given to you from another mold inspection. Usually, mold peer reviews are done because the mold inspector or person who took the samples can't give a clear answer as to whether there is mold growth or airborne spores in the property. Peer reviews typically ask for the lab data, any photos, the inspection report (if any), and the reason for the mold inspection. Many reasons for mold inspections are due to a driver such as a real estate transaction or health issues, rental properties, or when leaks and environmental issues occur, and the homeowner is asking for the home inspection.

Mold Remediation based on Lab Data

Mold remediation is the removal of mold. Mold remediation is based on different factors pertaining to mold at a property. To prepare a mold remediation quote the following is required/needed:

1. Area of concern
2. Size of area
3. Is there sheetrock?
4. Is containment needed?
5. Is the area accessible?
6. Many more questions and depend on the property itself.

When it comes down to it Mold Remediation is HEPA vacuuming, cleaning, and using a fungistatic coating to keep the mold growth from coming back.

What did you pay for in your mold inspection?

An experienced mold inspector will inspect the exterior of the property, and the interior area of concern and provide feedback. Remember, as it is said with almost everything, you get what you pay for. If you want a remediation quote, you may need a mold inspection so that you don’t overpay on your remediation costs…that’s another topic to cover later.

What are the requirements of property owners under P.L. 2021, c. 182?

How does NJ Lead safe law affect a property owner? Landlords are required to have their units inspected in accordance with the law.  If you are a landlord of a residential property built before 1978, your property requires an inspection by July of 2024 or earlier if a tenant vacates prior to that date. 100% of properties require visual lead risk assessment, and some municipalities ALSO require dust wipe samples to be obtained.

The landlord must:

• Complete the lead inspection of the property. 
• If lead paint hazards are found, remediate any lead hazards by abatement or lead-based paint hazard control.
• Provide evidence of the lead-safe certification or better yet a copy of the lead-safe certification to tenants.
• Report all tenant turnover activity to the municipality. 
• Provide a copy of N.J.A.C. 5:28A, and any lead-safe certifications to any prospective owners of the dwelling during the real estate transaction, settlement, or closing.  If you sell the property, the new owner must be aware of any lead-safe certifications.
• Provide a copy of the guidance document, Lead-Based Paint in Rental Dwellings.
• The Rental owner is obligated to provide a copy of any lead-safe certifications to the municipality.

Municipality obligations regarding the Lead Paint Law

Municipalities are required to ensure inspections are performed and may perform the inspection themselves or subcontract. Municipalities must allow landlords to perform their own inspections if they do not want the municipality to do so. Municipalities must maintain a record of all lead-free certifications issued pursuant to N.J.A.C. 5:17. Lastly, Municipalities are required to maintain a record of all dwellings subject to the lead-safe law which includes:

• up-to-date information on inspection schedules,
• inspection results,
• tenant turnover,
•  record of all lead-safe certifications issued
• maintain a record of all lead-free certifications issued pursuant to N.J.A.C. 5:17.

Do you feel like you have lead on the brain? 

Call the lead expects.

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What is the difference between a lead-safe and a lead-free certification?

Lead-safe means you have lead paint and it is well maintained and not deteriorated, flaking, etc. The lead hazard is contained and therefore does not represent an exposure pathway to humans. Lead-free, means you have no lead paint, the property is free of lead paint, and no lead paint hazard exists.

In the United States lead paint was banned in 1978 by the Consumer Products Safety Commission.  Consumers could not buy lead paint after 1978, but commercial sites still could.   The logic is if it was banned in 1978, homes built after 1978 should be lead-free after that date, but that is not always true.   Following the same logic, homes built before 1978 have the potential to contain lead paint. 

Lead paint was moisture resistant, dried fast, and wore like well lead, so lead paint had attributes anyone painting would find desirable.

EPA & HUD attempted to manage the risk of lead paint and established standards and protocols for evaluating lead paint, testing lead paint, and what to do when lead paint is found.  They learned that homes have lead paint on everything and even varnishes had lead, so basically pretty much any surface could contain lead.  Testing every surface for lead paint is time-consuming and expensive, so protocols were established that had costs in mind as the target housing for lead paint testing. The target was large multi-family rental buildings, causing the owners to incur substantial costs to evaluate for the lead paint on every surface in every room.  For example, a typical 3-bedroom home could have 300 lead tests performed.

There were also protocols established when lead paint was found and a child living in the home had an elevated lead blood level.  The protocol evaluated the child and what they were exposed to at home, outside, and even where family members worked Remember, as was stated early lead was banned for consumers, not commercial uses.  This assessment of lead risk was established as a Lead Risk Assessment.

What is a Lead Risk Assessment?  

A risk assessment is an on-site investigation to determine the presence, type, severity, and location of lead-based paint hazards, including lead hazards in paint, dust, and soil. The risk assessment provides suggested ways to control them. Risk assessments can be legally performed only by certified risk assessors.

New Jersey has a lead safe law for rental units.

The lead safe law requires a lead risk assessment to be performed to obtain a Lead-Safe certification.  The NJ lead inspection does not require testing of painted surfaces as there is the presumption that lead is present.   In NJ, some towns require dust sampling to see if lead paint is being liberated even if all painted surfaces look in pristine condition.

A lead-safe certification is a one-page form developed by NJ for these inspections. There is no HUD or EPA form used even though they are the entities that established the lead evaluation process and New Jersey law relies upon their protocols for their lead safe law, Confusing right?

There is no universal and clear cut lead-safe certification or requirement to verify that lead is or is not present. The New Jersey laws assume the paint is guilty aka it has lead.

Now everyone values freedom of choice and landlords subject to New Jersey lead-safe law may want testing of painted surfaces to confirm or deny lead is present and if lead is not found to obtain a lead-free certification.  But EPA and HUD have no form or certificate that can be filled out to certify a building as lead-free. 

So what is a lead-free certification?

A lead-free certification is actually a report that is compiled after a Lead Paint Inspection is performed, saying that documents all surfaces were tested for lead and no lead was found.  The report includes all test results and calibration of testing equipment to verify the results are accurate and a floor plan of the building detailing the sampling identification results for each room.  The report is a road map of the dwelling showing where and what was tested and the test results.  The conclusions of the report would be no lead paint was found the dwelling is lead-free.

How do you get a lead-free certification?

You have to complete a lead paint inspection which must be performed by a licensed and certified Lead Paint Inspector.   A Lead-Free inspection begins with a visual inspection and a hand-drawn floor plan of the rooms in the building.   Once you have the interior of the building outlined, you go test all surfaces with an XRF Gun.   This takes hours as you are testing walls, baseboards, window sills, moldings, handrails, doors, inside of closets, stairs, ceiling you name …all fixed painted surfaces.

The lead-free certification process is exhaustive and often times the dwelling fails because even though the owner believes they gutted everything, lead paint is found in an area untouched.  If you want to know where we find lead and properties fail for lead-free, call our office.

Monday to Friday 

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When lead paint is found and the lead-free certification is out the window, you pivot and perform a lead risk assessment with the intention of obtaining a Lead-Free certification. 

Curren Environmental’s mission of improving the environment has led our team to explore a variety of ways in which we can each mitigate the daily harm our environment faces. One area that is both majorly impactful and easily improved is the eco-friendliness of our cleaning supplies. Often what people may not realize is that in the process of cleaning our homes, we may be simultaneously polluting our planet.

Many cleaning supplies are composed of harsh chemicals that are harmful to the health of our planet as well as to human health. In order to make your kitchen counter sparkle, for example, you may be unleashing carcinogens and other toxins that then contaminate your indoor air. The contamination does not end there, as cleaning products like laundry and dishwasher detergent can then go on to pollute our bodies of water. The simple act of cleaning one’s home can be made far more complicated when one considers what ingredients, or chemicals, they are introducing to themselves and to those around them. We must not only think of ourselves but our children, pets, and house guests who have no idea what unsafe cleaning products they may be encountering. And beyond that, the most vulnerable victim of all, our planet.

With that information at your disposal, we hope you now see the value in eco-conscious cleaning practices. However, awareness is only half of the battle, as the remainder lies in actually implementing these changes. You may be left questioning where to start in this transition, or how to find products that are both eco-friendly and highly effective. Luckily, the US EPA, or Environmental Protection Agency, has developed a helpful program centered around this subject, entitled Safer Choice.

Safer Choice is a program with the intention of reducing, eliminating, or preventing pollution at its source. Safer Choice is a label that the EPA created to help consumers locate products with safer ingredient lists that also perform well in cleaning. On their site, they detail how EPA scientists evaluate every product labeled ‘Safer Choice’ to ensure their ingredients meet their strict safety criteria for both human and environmental health. They are evaluated for such things as carcinogenicity, reproductive/developmental toxicity, toxicity to aquatic life, and more.

The Safer Choice label can now be found on a wide array of products ranging from bathroom cleaners to pet care products. Searching for the label while shopping in store or online is one way in which consumers can utilize this program. Consumers may also quickly search a product or company name using the Safer Choice search engine on the EPA’s website.

Next time you’re planning to restock your cleaning supply collection, we urge you to consider the information we have presented today. Don’t compromise on your health and safety by sticking to familiar products with harmful ingredients. Take the time to find products that will be kinder to both your family and the environment, and rest assured that the health of all will greatly benefit.

How can I be more environmentally friendly, more green?

How can I be more friendly to the environment? We hear this a lot. No one is against being green, as long it is not a big inconvenience. The New Jersey plastic bag ban forced millions of people to stop using plastic bags and to change their habits of bringing reusable bag into the store when they go shopping.  If you don't live in NJ (lucky You), start stocking reusable bags in your car and when you go to the store put your cell phone in a reusable bag 100% you won't leave the car without a reusable bag or phone.

There are other voluntary areas where the average person can help the environment.

Go Brown not Bleached White. White napkins and paper towels go through an extra process to make them white. Choose to buy the brown one. In short order stores will sell out, sales will increase, and manufacturers will make more brown paper products reducing the bleaching process and associated chemicals that get discharged into our waterways.

Cleaning supplies i.e., what are safe cleaning chemicals?  

Your grandmother was right, vinegar is an excellent cleaning compound. Reliable and Scientific Tips for Cleaning With Vinegar | NSF.     People love scents and a cleaner with a fresh scent fools people into thinking that some serious cleaning has occurred. Well, any scent you smell is an assortment of chemicals formulated in the lab that are simply there to fool your senses.   The scent of a cleaner has ZERO effect on the effectiveness of the cleaner.  In short buy scentless cleaners or use vinegar and make your own. I am not going to even go into the fact that a gallon of vinegar would last the average person 2 years, which is a huge saving and yes you will have to buy a reusable spray bottle to mix your own. SUPPLYAID 32 oz. All-Purpose Leak-Proof Plastic Spray Bottles with Adjustable No-Leak, Non-Clogging Nozzle (12-Pack Bundle) BDL-A0027 - The Home Depot

Your health and the environment can go hand in hand. 90% of people disinfect the wrong way.   Surprised that you do not know how to disinfect? You shouldn’t be, because we do not read instructions. If you use bleach, which is a great disinfectant, readily available and inexpensive you likely are using it wrong.   When you spray a surface with bleach (pretty much any disinfectant) and then wipe the surface, you are going it WRONG.  Bleach and pretty much any disinfectant needs a 10-minute set time to disinfect.   Use of disinfectants: alcohol and bleach - Infection Prevention and Control of Epidemic- and Pandemic-Prone Acute Respiratory Infections in Health Care - NCBI Bookshelf (nih.gov)      Bleach is not the only disinfectant that needs time, all disinfectants need time to work. We apply mold fungicides (disinfectants) and they require a set time (on average 10 minutes). So if you are sick or want to properly disinfect a surface you have to apply and wait before you wipe it off, who does that?

Wash cloth in cold not hot water.  

Due to the government driving manufacturers to be more energy efficient, most all detergents are designed to work in cold water. Tide Plus Coldwater Clean Liquid Laundry Detergent | Tide   I constantly find my washer setting set to hot r warm water when it is not needed, but my family doesn’t listen.

Yard and Lawn watering.   80% of people water improperly. Early morning (4:00 and 8:00 a.m. ) is the best time to water plants, scrubs, and lawns, BECAUSE the cooler temperatures, minimal wind and higher humidity allow the water to soak in rather than evaporate. Evaporation rates can increase exponentially as the day goes on.

Shrubs, water aggressively within the drip line of the shrubs, this forces water deeper, driving roots deeper into COOLE soils, which are more resistant to heat stress since the roots are at a deeper depth and cooler temperature.

 Pulse your watering to prime the soil and prevent runoff. What the heck does that mean? It means a dry sponge is finicky in soaking up water, but a damp sponge is more willing to absorb water.   If you gently water shrubs, the soils will go from dry to damp, allowing more water to be absorbed. But the process takes time so a short watering allows the water to soak into the dry soils. Damp soil more readily accepts water than dry soils, by pulsing your watering you will increase water absorption by 50% when compared to your typical water routine. Case in point ever water a potted plant and water overflows? How about water runoff on a lawn?

Energy production is not green for over 90-% of the energy that we produce, so use energy wisely.   Swap out your non-led lightbulbs with led and save 75%. Meaning an LED bulb uses 75% less energy than an incandescent bulb. Pro Tip, LED bulbs are more expensive and if you are afraid of not recouping the expense, save all your incandescent bulbs in a box. When you move swap them back and take the LEDs t your new house.

Buy bulbs smart and no I do not mean smart bulbs which we view as too expensive today to justify the investment. What we mean is based on light output. Lumens and the Lighting Facts Label | Department of Energy

With LED bulbs think lumens, not watts.

The brightness, or lumen levels, of the lights vary considerably. Here are some rules of thumb to follow:

• An old 100-watt (W) incandescent bulb, is 1600 lumens, so buy a 1600 lumen LED.
• 75W bulb = 1100 lumens
• 60W bulb = 800 lumens
• 40W bulb = 450 lumens

Plastic Utensils, just stop buying them   They are single-use, and no one reses them but my brother, yep he washes them and saves them. In lieu of buying plastic knives and forks, buy a set or two of spoons, knives, and forks. Keep them in their own holder and pull them out when you entertain.   You will save the environment and eventually receive payback on your investment.

 In the same vein, when you order takeout, how often do you get prepacked utensils you do not need? How about condiments you do not need?   When you order remember outside of the food let the restaurant know that you don’t need utilis or ketchup packs.

When buying a house you inherit the improvements, the land, and the fixtures. An oil tank would be classified as a fixture as it is connected to the house as a fuel source. Generally speaking, an oil tank would be thought of as something typically transferred during the sale.  The tanks in the photo below are newer, about 13 years old, and are in an 80-year-old house, the layperson's opinion would be great new oil tanks, right? Well, the older, wiser bull would ask -  what happened with the prior oil tank?

The answer would be the prior oil tank is in the ground or rather underground, and the in-use underground oil tank was replaced because the water was entering the oil tank the oil tank was not removed because it cost money and the new oil tanks were an unexpected expense. Trust us the buyer is going to want the buried tank removed.

To finish the story above, one of the oil tanks did leak, about $14,000 to clean up, so not that bad.

Oil tanks are a great exception when it comes to real estate.   Oil tanks are a known liability, a Recognized Environmental Condition (REC), or an Area of Concern (AOC). Oil tanks age and wear and when the failure occurs,  oil leaks, which causes soil contamination, which under current laws is the responsibility of the owner to repair and remediate.  Now, buyers are known to sue sellers after the sale occurs if they discover the oil tank leaked and buyers believe owners did not disclose this key defect. 

Can you sell a house with an oil tank that is in use or decommissioned or abandoned?  

Sellers can indeed legally sell the home, but in the rare times this does occur there is liability generated for both buyer and seller.   To buy a property with a tank is to assume the liability associated with the tank, which some buyers assume is no liability.

Why would a seller want to sell a property with an oil tank?

First to remove and replace an oil tank, budget $2,000 for removal and $3,000 or more to install a new oil tank. Converting to natural gas, budget $10,000. The first reason to sell with an oil tank is seller saves money and why would a seller want to upgrade a house they are selling? But that isn’t even the real reason sellers sell with an oil tank, it's because the remediation of an oil tank can cost $30,000 or more, or less, but the cost to remediate is more than most people can budget, so it’s an expense people avoid.

 So who has liability when selling a house with an oil tank?

Both buyer and seller have liability. For a seller, when the transfer occurs, no doubt the buyer is not anticipating a $50,000 cleanup and when that occurs, lawsuits occur as the buyer suspects the seller knew about the oil tank and lied. Sellers who sell tanks are viewed as used car salespeople. We have seen every sort of lawsuit from Estates to retired people to young couples selling to buy a larger home, in every scenario the buyer finds contamination that they believe the seller knew about. In most cases the buyer wins and the seller pays.

How does a buyer have liability for buying a property with an oil tank?

Buyer beware, break it you buy it, possession is 9/10^th of the law. Whatever the term, if you own the property, you own the problem. Sure, you can sue the seller as in our example above, but if it is say an Estate and the estate dissolves and the money is gone, good luck.

What if you have an abandoned oil tank and disclose it to the buyer?

Buyers buy homes where the seller discloses they had an oil tank filled in place tank, after they buy the property they realize that an abandoned oil tank doesn’t mean no leaks. The saying goes as long as it was abandoned properly, that oil tank does not present any legal issues. The real question isn’t whether a seller can do it, it’s whether a seller should or to put it in simple terms are you 100% the abandoned oil tank does not represent an issue?

Case in point, property being sold, owners did not disclose an oil tank.  The buyer does an oil tank weep and finds an oil tank.  Sellers dig up information on the oil tank, even though two days earlier they did not know the underground oil tank.   Curren Environmental is requested to review the paperwork.  It included an invoice, a copy of the permit (to fill the oil tank in place), a copy of the oil manifest, a hand-drawn map of the property and a one-page letter which I snipped below. 

Makes No Warranty or Certifications to Soil, Groundwater, or Environmental Conditions.

So did the tank leak?  I don't know, but the company that did the work is not saying it did or didn't. per the statement above. 

The next step is to the oil tank gets removed and tested, because the paperwork is insufficient in today's environment, but to be fair this wasn't sufficient in 2005 either, but the people who owned the house did not want to find a problem so they hired a company who would not test the soils.  Of course, flashforward to today and they are paying again to get the tank decommissioned so they can sell the property.

What do you have that says the oil tank did not leak? 9 times out of 10 it’s the wrong document, like my example above. A thousand other set of documents that is insufficient to certify the oil tank as nonleaking. 

Buyers and sellers need to be on the same page with oil tanks.

Did you look for contamination when the oil tank was abandoned?   Like when a dentist looks for cavities, when you abandon an oil tank there are steps you take to certify the tank did not leak, and also testing, like an x-ray.

What if you remove the oil tank instead of filling it in place? Would we find contamination?  

We often find contamination when removing abandoned oil tanks. Yes, you read that right, we find some evidence of contamination, of past soil contamination (maybe a previous tank buried in the same area as an abandoned oil tank, sometimes we find a 2^nd oil tank. In all these situations we find contamination that wasn’t picked up before, and now it's reportable to the state, and the owner has to clean it up. How do you know if you have proper documentation certifying a tank did not leak?

Every year we peer review thousands of reports, lab data, and documents about prior environmental work, to see if our clients are covered. Often the data is lacking or there is an issue that people gloss over.  In most all cases, we have to recommend the removal of the tank, which is reverse engineering the prior work.

Is it better to remove or abandon an oil tank?

Removal is always better because the tank is gone, there should be no issue if it leaked because you can see the tank out of the ground and it’s easy to collect soil samples from the ground after the tank is removed.

Tanks destroy curb appeal so if selling a house with an oil tank, no one is going to say hey that’s a benefit. The number of buyers is smaller than a property without an oil tank. A house that has an abandoned underground oil tank will stop most buyers in their tracks because the buyer doesn’t want to inherit some problem in the future.

We have had plenty of clients (who eventually hire us to remove the oil tank) selling with a properly abandoned oil tank, properly abandoned in the ground. All permits were obtained, but the deal repeatedly falls apart. Why?  Because the buyer goes into attorney review, and they talk to their attorney and decide they won’t proceed out of attorney review unless the seller agrees to remove and test the oil tank.

Now many developers and house flippers will buy a house with an oil tank, but you hope they disclose the tank to the next buyer, otherwise, lawsuits occur, and the original seller whom the flipper bought the house from gets sued. Why sue?   Because an oil tank is found and the buyer demands removal, then contamination is found and you, as the original seller, obviously knew about the contamination.

Let’s say you even find someone who wants to buy the house with the oil tank, well the mortgage company may have a thing or two to say. Most lenders are hesitant to make a loan on a property that has an abandoned underground oil tank, even if you have permits. Sometimes for certain loans, the oil tank makes the lender pull the load or the lender wants the tank removed to provide a mortgage.

These are some of the reasons why an oil tank should be properly removed and documented.   yo less likely to get sued and more interested buyers translate to a higher purchase price and of course less headaches.

Lead Risk assessors are required to perform dust wipe sampling only in towns that are on the DCA list 2022-23 Lead-Based Paint Inspection Methodology Pursuant to P.L.2021, c.182.  Link below:

2022-23 Lead-Based Paint Inspection Methodology Pursuant to P.L.2021, c.182

Some municipalities that have staff to complete the inspection  want to do both visual and wipe sample., even if the town is visual only.

The law allows municipal inspectors to perform visual and dust wipe even if the municipality is not a dust wipe town.  The law reads as follows:

For dwellings located in a municipality in which less than three percent of children six years of age or younger tested have a blood lead level greater than or equal to five micrograms per deciliter, the inspection may be carried out through visual inspection, as explained in Section 3.3.4, below. However, these municipalities may elect to undertake dust wipe sampling, as explained in Section 3.3.5, below.

3.3.5 (p.15) says:

3.3.5 Dust Wipe Sampling Dust wipe sampling is collected by wiping representative surfaces, including floors (both carpeted and uncarpeted), interior windowsills, and other similar surfaces, and testing in accordance with a method approved by HUD. These samples must be undertaken properly to ensure that results are accurate. N.J.A.C. 5:17 contains requirements for dust wipe sampling. In addition, Appendix 13.1 of the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing provides the protocol for sample collection. This Appendix is available online at: https://www.hud.gov/sites/documents/LBPH-40.PDF. It is recommended that the lead evaluation contractor or permanent local agency also perform a visual inspection when undertaking a dust wipe sampling.

Many municipalities chose to do wipe sampling in addition to visual because it provides a higher level of confident that there is no health risk at the time of inspection.   Attorneys and insurance carriers might prefer it though, so the inspection is more thorough.  Although dust wipe sampling adds cost when not required and it might pick up lead contamination from some source other than paint.

The NJ Lead Safe law has created a lot of confusion for landlords.  Bottom line it pays for landlords to contract their own lead paint inspection for rental units.

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