Case Study of How NOT to Run a Voluntary Cleanup Program

The Cleanup Volunteer Asserts Itself

Back on the scene comes Ken Cavalier.  He advises IEE to hold off a bit on responding to DEC’s latest letter and recommends that indoor air samples be taken inside the Bright and Shiny building.  This is done on November 20, 2001, using passive diffusion PERC monitors (badges) left in place for 8 hours at breathing height at three locations in the store (two are on pillars near where the SVE pipes pass through the building; the third is near the front of the building at a cashier’s station[i]).  The results come back.  No PERC is found in the checkout area (at the detection limit of 2.1 ug/m³).  Barely detectable concentrations are found (2.8 and 2.9 ug/m³) at the other two locations.  The highest levels are more than 200,000 times below OSHA worker safety levels.  Vindication at last?

Cavalier requests a meeting with the DEC regional director and relevant staff professionals.  The meeting occurs on December 18, 2001 at DEC’s office in Lakota.  One of the regional office participants is the DEC attorney who represented the Department in negotiating the VCA in 1996 for Dilapidated Plaza.  By the end of the meeting two hours later, the four DEC meeting participants have no trouble agreeing in principle that PLJ should receive a Liability Release as soon as possible, conditioned only on the conduct of one more groundwater sample at new MW-2 (to confirm the accuracy of the August result) and a year’s worth of indoor air monitoring.  Regional Director Truehart cautioned, however, that concurrence still needed to be obtained from DEC headquarters and from DOH.

True to form, DEC headquarters and DOH were soon heard from.  In response, PLJ reluctantly agreed to adding two long-range groundwater samples (in June 2002 and June 2003) at the sentinel monitoring well (new MW-2) to provide assurance that earthmoving activities had not somehow mobilized a slug of not-yet-seen PERC contamination.  PLJ also yielded to DOH’s insistence that SVE stack emissions be monitored on a quarterly basis in parallel with indoor air monitoring—so the subsurface behavior of VOCs could be tracked in relation to what was occurring inside the building.  (This is perhaps nice to know, but not anything PLJ should be required to monitor at its expense.)

On December 31, 2001, Ken Cavalier embodied the updated monitoring plan in a letter to DEC, and IEE collected the last (regular) groundwater sample at new MW-2 (PERC levels were virtually the same as in the previous sample).  IEE also shut down the electric fans serving the SVE system—so that quarterly indoor sampling can occur under worst-case (intermittent wind-driven rather than continuous electric-driven) SVE operating conditions.  (At DOH’s request, the fans will be turned back on briefly just before SVE stack samples are taken—to make conditions as uniform as possible from one sampling event to the next.)

At this writing (late March of 2002), PLJ awaits word of its (conditional) Liability Release from DEC—although no one on the PLJ team would be very surprised at this point if one or more of the concurring multitudes at DEC or DOH seek to inject still further conditions or requirements before closure can be achieved.  (Now that The New York Environmental Lawyer article is out, if DEC seeks to punish PLJ--by withholding or further delaying the liability release to which PLJ is entitled--for an unflattering critique of its program by a close relative of PLJ's lawyer, it will open itself up to further condemnation for unseemly vindictiveness.)