Case Study of How NOT to Run a Voluntary Cleanup Program

The "Phase I" Period--DEC Requirements Mount

During the period that PLJ continued to operate Dilapidated Plaza’s existing shopping center building (“Phase I”), a period which extended until the Spring of 2001, it had submitted to six obligations[i] under the DEC-approved VCA Work Plan.  Three of these were quickly carried out:  (1) copies of all existing environmental assessment reports had already been turned over to Mr. Suave; (2) contaminated sediment/sludge and liquid in Septic Tank #1 was remediated by removal and appropriate offsite disposal; and (3) the connection of Ralph’s Dry Cleaners to the municipal sewer system and the absence of any floor drains still connected to the septic system were verified.

A fourth requirement—that the dry cleaning/laundry building tenant be required to institute improved housekeeping measures to minimize the probability of spillage from the in-building solvent tank (and to enhance the ability to observe any spillage)—was implemented in several steps (after PLJ confirmed its legal options under the carryover lease with Ralph’s Dry Cleaners).  Initially, Ralph’s was required to discontinue dry cleaning operations entirely.  Later, when its current lease term expired, the lease was not renewed.

The remaining two requirements were more elaborate.  PLJ had to attempt to locate, access, characterize, and remediate the contents of any underground tanks that might be located behind the shopping plaza building.  It was to do this with the aid of Old County Health Department records (which had already been shown to be less than fully accurate for this Site).  If, in the course of this investigation, DEC determined that a release of oil or hazardous substances may have occurred from a tank, appropriate soil sampling beneath and adjacent to the tank would be performed with any necessary removal of soils (contaminated to the point of meeting the VCA’s definition of a “source area”—i.e., to levels “which currently, or reasonabl[y] have the potential to, adversely affect human health or cause any significant off-Site impact, as determined by the Department”) taking place in accordance with a Department-approved work plan.

Under the other detailed requirement, PLJ was to take 10-12 soil gas readings (using appropriate soil gas probes) at locations behind the shopping plaza building and in the former septic leachfields to more fully characterize the distribution of VOCs in subsurface soils.  If, as a result of such soil gas readings, any “source areas” (as defined in the VCA) were identified, PLJ would remediate such areas in accordance with a DEC-approved work plan.  (Extensive soil gas readings were actually taken by IEE in early 1996, as part of a Phase II Environmental Site Assessment, even before PLJ signed the Voluntary Cleanup Agreement in April 1996.)

By December, 1996—as documented in 4 progress reports by IEE—these requirements had been largely satisfied.  However, a Target Compound List analysis of soils stockpiled during the removal of Septic Tank #3 (the one located closest to the Dry Cleaners) revealed that PERC was present in excess of Toxicity Characteristic Leachate Procedure (TCLP) regulatory limits (8.97 mg/l versus 0.7 mg/l), consequently requiring disposal as a characteristic hazardous waste.  Instead of contenting itself with requiring PLJ to remove and dispose of this isolated hotspot of contaminated soils (as contemplated in the VCA), DEC (through Mr. Suave) persuaded IEE to conduct a soil vapor extraction (SVE) pilot study.  While verbally acknowledging that, under the terms of the VCA, implementing an SVE response action was not really something PLJ was required to do, Mr. Suave suggested that PLJ might still want to pursue this approach as a way to avoid “the possibility” and the associated stigma that the site could be listed as an inactive hazardous waste site.  (In reality, as Mr. Suave and DEC were well aware, this Site could never have been listed as a “Class 2” [significant threat] site, and if listed at all, which was doubtful, would have qualified as no more than a low-risk “Class 3” or “Class 4” site.)

While a series of SVE wells was put in place, including one through the floor slab of the Dry Cleaning store, extensive groundwater monitoring was also occurring to confirm the direction of groundwater flow and determine if any risk was being posed to the North Forks Municipal Well (or to the adjacent Swanee River).

On September 2, 1997, IEE reported to DEC that tests on an initial SVE well indicated that DEC Air Guide-1 limits (governing the need for stack emission controls) were being fully complied with (i.e., no such controls were required), and proposed to install two additional SVE wells (to ensure full coverage of potentially contaminated areas around Septic Tank #3) to complete a year-long monitoring program.

On January 1, 1998, IEE reported to DEC that the direction of groundwater flow from the Site was “southeasterly toward the general direction of the Fortress-Creek-Swanee River confluence” and does “not indicate a [south] westerly flow toward the North Forks municipal well.”  Although PERC and two of its transformation products were detected in MW-1 (closest to the former source area—Septic Tank #3), none of these volatiles was detected above the method detection limit (of 1 ug/l) in samples from the two wells located between the former source area and the municipal well.

With uncharacteristic speed, DEC responded on February 11, 1998, agreeing with IEE that the January report had “clearly demonstrated that the municipal well located at North Forks will not be impacted by the groundwater contamination identified at this site.” 

Unfortunately, DEC’s insatiable appetite for information was not to be so easily assuaged.

Without missing a beat, DEC requested additional groundwater investigation work because the wells (deployed with DEC oversight and direction) were “inconclusive” as to whether an off-site impact “has or could occur” due to the release of PERC to the groundwater.  (IEE dutifully offered to collect another year’s worth of quarterly groundwater samples from the furthest downgradient wells to demonstrate the lack of any increasing concentration trend or the risk of offsite migration.)   A supplemental work plan was requested to determine “if the PERC in the site soils could cause a potential health exposure based on the contemplated use of the site” (in which case remedial measures would be necessary to reduce that risk).  These additional requests were made despite the consistent results of prior groundwater monitoring, which showed buildups of PERC only in the immediate vicinity and downgradient of the source area and undetectable or at trace levels anywhere else.  And they were made despite previous DEC assurances that PLJ would not have to worry about air quality within the Dilapidated Plaza building.  (Could it be that DOH, having been ceded an expanding role by DEC, was now flexing its muscles?)   These requests were also made without obvious regard to the limited investigation and remediation measures called for in the 1996 VCA.

To add insult to injury, the February 1998 DEC letter went on to assure PLJ that, even if DEC decided to list the Site as an inactive hazardous waste site, PLJ “would not be required to perform any additional investigative/remedial work other than what is required” under the terms of the VCA.  This assurance had a hollow ring because (a) DEC had already required PLJ to perform far more investigative/remedial work than what the VCA required, and (b) DEC was more and more treating the Site as though it were a Class 2 hazardous waste site and PLJ as though it were a culpable responsible party (and not a completely innocent non-PRP prospective purchaser and cleanup volunteer).

On August 24, 1998, a revised work plan meeting all of DEC’s new requirements was finally submitted by IEE.  It proposed to install two additional 2-inch diameter SVE wells (and one 2-inch diameter monitoring well) behind Ralph’s Dry Cleaners.  To address concerns about possible contamination beneath the floor slab at Ralph’s, a core would be drilled through the slab and a solid PVC pipe would be embedded and connected (similar to the other SVE wells) to an extraction blower.  Soil samples from borings would be collected and subjected to PID screening.  After system start-up, PID readings would be taken (and a vapor sample collected) from each SVE well monthly for 3 months to verify the effectiveness of the SVE system and that emissions were within DEC Air Guide limits.  After collecting the baseline data, monthly sampling would be changed to quarterly (expected to continue for a year).  Quarterly samples would also be taken from a suite of groundwater monitoring wells (paired to collect samples at shallow and deeper depths).  Graphs would be prepared depicting contaminant concentrations over time, with remedial activities terminating when results (i.e., asymptotic conditions) indicated that little additional benefit would be realized from continued operation.  At this point, soil samples would be taken to evaluate residual contamination levels.

The point of diminishing returns had long since been reached.

Finally, a full 4 months later (on December 18, 1998), DEC approved IEE’s August work plan.