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Innocent Until Proven Guilty: Closure of Property Through the State Innocent Owner Program

Whitehead E.S. is a Texas-based environmental consulting firm that specializes in the assessment, remediation, and regulatory closure of contaminated properties. Many of the properties we work with are located in urban areas of Texas such as Dallas, Fort Worth, Houston, San Antonio, and Austin. 

Whitehead E. S. assisted a local property investor to obtain an Innocent Owner/Operator Program (IOP) Certificate through the Texas Commission on Environmental Quality (TCEQ) for a restaurant located in a re-developed area northeast of downtown Dallas. The Phase I Environmental Site Assessment (ESA) indicated that the property was potentially impacted by a north-adjacent former service station and south-adjacent dry cleaner. No sources of potential contamination were identified on the Site itself since it has historically operated as a restaurant. 

Initial soil and groundwater sampling identified low concentrations of chlorinated volatile organic compounds (VOCs) just above the TCEQ Assessment Levels. These VOCs are common degradation products of the dry cleaning solvent tetrachloroethene or “perc”. No gasoline VOCs were detected. Soil samples with elevated VOCs were present at depths above the water table in a paved area adjacent to the back door and sewer line of the former dry cleaner. The historical data, along with sampling results, suggested an off-Site source. However, the presence of VOCs at low concentrations in the shallow soil is typically problematic in obtaining an IOP Certificate from TCEQ.   

The Site was entered into the TCEQ’s IOP to prove that the chemicals of concern were the result of a migration of dry cleaning chemicals from the adjacent property and not the Site. A key part of the IOP is that the Site did not “cause or contribute” to the contamination. Whitehead E. S. performed multiple rounds of soil sampling to determine the hot spot/source of the impact. Unfortunately, no smoking gun was identified in the sampling. However, during the sampling process and working with the TCEQ IOP case manager, the adjacent former dry cleaning property was entered into the Dry Cleaning Remediation Program (DCRP).  Extensive soil and groundwater sampling by the DCRP contractor indicated the dry cleaner was the primary source of the VOCs. This aided our overall assessment of the case. After review of the available facts, the TCEQ issued the property owner an IOP Certificate in October 2019.

In summary, this case proved difficult because of the low concentrations of VOCs in the soil above the water table. The keys to successfully obtaining an IOP Certificate were: 1) extensive sampling showing that surface spills and leaks from the shallow sewer line of the former dry cleaner were the likely sources to soil impacts at the Site; 2) sampling data from the off-Site DCRP case showed a clear source; and 3) no on-Site source was identified.  Whitehead E. S. is appreciative of our excellent working relationship with the TCEQ which was needed to work through the technical challenges of this IOP case.

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