Case Study of How NOT to Run a Voluntary Cleanup Program

The "Phase II" Period--DEC is Not Finished with its Phase I Demands

After another year-and-a-half of data collection by IEE, PLJ unveiled plans to demolish the existing Dilapidated Plaza building and construct a new big-box Bright and Shiny Hardware Store at the Site.  Ken Cavalier was again brought into the process to secure needed Town of North Forks approvals.  Site sketches and engineering plans were developed to portray the new and improved shopping center and meetings and public hearings were scheduled (including SEQRA review—involving a long-form EAF and negative declaration), beginning in October 2000, before the Town of North Forks, which was delighted that a prestigious national retailer was interested in locating there.  Town officials and members of the community welcomed the revitalization of Dilapidated Plaza, which would yield not only much-needed tax revenues and jobs, but would boost business for surrounding retailers and would stimulate the rejuvenation of the whole North Forks/Route 666 commercial zone.  Final site plan approval by the North Forks Planning Board came on December 11, 2000.

As the Dilapidated Plaza site was poised to enter “Phase II” under the VCA, IEE and DEC were still bogged down in a labyrinth of questionable “Phase I” monitoring and research.

While the new development project was pending before the Town of North Forks, IEE was instructed by PLJ, as soon as the last tenant had vacated the Dilapidate Plaza building, to move forward (with DEC approval and oversight) with removing any remaining accessible remnants of the septic system and leach field.  Most of these components were previously identified, but could not be removed until all tenants had vacated because of utility lines that could not be disconnected.  In addition to the previously excavated Septic Tanks ##1, 2, and 3, two additional metal septic tanks (##4, and 5), discovered in a 1996 magnetometer survey, were removed from the site.  (Contaminated soils associated with Septic Tank #3 had also been previously excavated and properly disposed of offsite.)  An additional “tank” #6 (actually a grease trap installed in the sewer line to intercept heavy grease loads from any restaurant tenants) was found and removed during demolition of the Dilapidated Plaza building.

In October 2000, IEE submitted a Remedial Action Plan (RAP) to DEC on behalf of PLJ to address the steps to be taken pursuant to “Phase II” of the VCA.  (The “Phase II” work plan consisted of two straightforward requirements[i]: (1) demolish the dry cleaning store, appropriately drain and dispose of the in-building solvent tank and recycling system, and their contents; and (2) remove and appropriately dispose of, after sampling and testing, any underground septic tanks, underground storage tanks, and associated piping, and their contents, prior to demolition or other earthmoving or construction likely to disturb them.)

The RAP set forth the procedures to be used to complete the removal of identified source areas.  Because of the planned excavation of all contamination source areas, the demolition of the shopping plaza building (and associated utility lines), and the construction of a new, large-footprint retail building, it was proposed to remove and dismantle the existing SVE and groundwater wells.  Since the objective of “Phase II” was to complete the removal of identified source areas, no engineering controls were proposed.  Although it is difficult to imagine how, with all of the source areas removed and the entire Site capped beneath impervious layers of pavement or concrete, any additional remedial action might be needed or further monitoring required, IEE nevertheless proposed (in response to DEC prodding) to install new groundwater monitoring wells to replace those abandoned prior to site redevelopment.  (IEE proposed to specify the locations and depths of these wells at a later time, after test results were available for post-excavation subsurface soil quality samples.)  IEE even agreed to entertain the need for post-development remedial action based on the contaminant levels remaining in the subsurface and the final location and elevation of the new building. 

 Although the initiation of “Phase II” source removal should have been viewed as superseding any previously initiated palliatives (source reduction and monitoring) under “Phase I,” DEC (and DOH) weren’t about to allow their cleanup volunteer to escape their grasp quite so easily.  After all, PLJ wasn’t some recalcitrant polluter that would be a lot of trouble to take on, it was an innocent volunteer with deep pockets that had always shown a willingness to cooperate and had readily agreed to almost anything DEC asked for.  This was certainly no time to be letting PLJ off the hook.

Two-and-a-half months later (December 12, 2000), DEC responded to the proposed RAP.  IEE’s plan did not go far enough.  PLJ would need to install the portion of a new SVE system that would reside in the source area, beneath the new building prior to construction—so that if excavation did not obtain the proposed soil cleanup objectives, an SVE system could be operated to remove the remaining contamination.  An SVE system would also be necessary “in the event that a possible source area was not identified and that [it] could result in an unacceptable impact to indoor air quality.”  (There was no explanation of how any unidentified source area could remain with the old building removed and the subsurface soils and former leachfields thoroughly screened by earthmoving equipment.  Nor was it explained how an SVE system, if it could not be required under the VCA in “Phase I,” could be imposed during “Phase II,” with even fewer traces of remaining VOCs.  Or why indoor air quality was suddenly a concern, despite previous assurances to the contrary, and despite the removal of source areas.)

In the design of the SVE system, although DEC required a soil gas vapor barrier beneath the concrete floor slab only in areas of known PERC contamination, PLJ and the management of Bright and Shiny decided to extend such a barrier beneath the slab of the entire massive Bright and Shiny building.  (Any hope that DEC or DOH would find this reassuring, causing them to moderate their insistence on extended stack gas monitoring, was misplaced.)

IEE tried again.  A new Remedial Action Work Plan was submitted in January 2001.  This Plan included updated monitoring results.  It showed continued declines in groundwater concentrations and dramatic reductions in SVE stack emissions (even before building demolition).  The RAP proposed to excavate and remove soils from below the building and the remaining septic structures to the point that soil cleanup objectives (1.4 mg/kg for PERC—as set forth in DEC TAGM # 4046)[ii] were achieved.  If soil cleanup objectives were not met in the area of the new building footprint, new SVE piping would be installed in the area(s) of elevated concentrations.  New monitoring wells would be installed at locations to be based on the extent and location of soil contamination.

After another two-and-a-half months (and barely in time to avoid scuttling the new development project and real estate deal), DEC on March 26, 2001 approved the Remedial Action Work Plan of January 2001, subject to various conditions.  (These included DEC’s insistence on installing SVE piping at all locations where the new building would rest over soils contaminated by the former dry clean process, and the need to perform a full Target Compound Analyte List analysis on one soil sample and one downgradient groundwater sample obtained from the area of highest contamination.)          

IEE submitted an updated Remedial Action Plan in April 2001 (quantifying the relatively small extent of soil contamination within the building footprint that might exceed DEC regulatory limits).  An updated Remedial Action Report was submitted on June 18, 2001, followed in August by the installation of new groundwater monitoring wells.

In the meantime, the real estate deal was concluded between PLJ and Bright and Shiny Hardware, with ownership passing to the latter.  (An Escrow Agreement entered into on March 27, 2001 established a $165,000 Environmental Escrow Fund to ensure Bright and Shiny that any remaining cleanup work would be done and that an assignable liability release would be issued by DEC.)

On September 10^th, DEC issued a letter stating that the Remedial Action Report submitted 3 months earlier could not be approved “without first determining if a complete soil vapor extraction (SVE) system is needed at this site.”  It also indicated that the separate letter report from IEE on post-development monitoring well installations and sampling, including frequency of sampling events, “must be submitted prior to receiving final [RAP] approval.”  By this time, the new retail store was fully constructed and would shortly open for business.  An electric-powered continuous SVE system with two fan-driven SVE vents (SVE-East and SVE-West) had been installed—from beneath the building slab and venting from the building roof.  These new SVE units—which were also equipped with wind-driven turbines—replaced the pre-demolition (non-electric-powered) wind-driven SVE extraction wells.

IEE submitted another Remedial Action Report on October 25, 2001.  This Report took issue with DEC’s insistence (at the urging of DOH) that SVE stack emissions, having already been shown to easily meet DEC Air Guide limits, continue to be measured at quarterly intervals for at least a year, with no indication of how much PERC in the stack emissions would be considered too much and no finite duration to the continuation of such monitoring.  Also, IEE was concerned that DOH might unjustifiably seek to apply to SVE stack emission levels its 1999 DOH “guidelines for PERC in air.”[iii] 

That guideline states:  “NYSDOH recommends that the average air level in a residential community not exceed 0.1 milligrams of PERC per cubic meter of air (0.1 mg/m³),[iv] considering continuous lifetime exposure and sensitive people.”  It is not applicable or relevant to the Delapidated Plaza situation for several reasons.  In the first place, the inside of a commercial building should not be judged by a guideline designed for a “residential community.”  In the second place, PERC levels in the stacks of an SVE system, which was designed to extract PERC from subsurface soils and groundwater, have no public health significance (as long as DEC stack emission limits are not exceeded) other than that the more PERC that shows up in the stacks, the less is left behind in the ground.  (A cleanup volunteer should not be penalized because it is employing a pollution control device that works.)  In the third place, no one is likely to come in contact with concentrated stack emissions on the roof of a commercial building, 25 feet off the ground.  In the fourth place, even if the PERC levels measured in the SVE stacks were actually found inside the commercial building, the workers likely to inhale it would have far lower exposure levels over far shorter periods of time than the populations addressed by the DOH guideline.[v]  And, in the fifth place, an indoor air standard for the protection of workers has been set by the Federal government (OSHA).  That standard—689 milligrams per cubic meter of air (689 mg/m³), or 100 parts per million—is considerably less stringent than the DOH residential guideline.

On November 15, 2001, DEC issued its response to the October 2001 RAP, requesting that the RAP be resubmitted for approval after IEE addressed yet another set of comments.  Comments included: the need to articulate the rationale (already provided previously) “of why treatment of the emissions are [sic] not necessary” (response: because they were shown to be far below DEC Air Guide-1 limits, which define when emission treatment is required); and a requirement that the report be certified by a registered professional engineer (see previous discussion of this subject).  The letter also reiterated the insistence by the regional DOH representative, Robinson Crusader (no doubt, responding to directives from Albany), that the SVE system “must be operated and monitored for a minimum of one year, with emissions from each system sampled at least monthly, a record [maintained] documenting any interruptions of the electric powered fan, and documentation that the building has remained under positive pressure as designed for the duration of the monitoring period.”  (An October 25, 2001 letter from Bright and Shiny’s electro-mechanical engineers had explained that, at all times the building is occupied, 15,600 cubic feet per minute [CFM] of outdoor air is pumped into the building through rooftop units.  Two exhaust fans remove 1,200 CFM from the building, leaving 14,400 CFM of positivie pressure.)

In the meantime, new groundwater monitoring results showed no target VOC compounds at detectable concentrations in any of the samples from the four downgradient monitoring wells, with the exception of new MW-2—located directly downgradient of the former source area beneath the former Dry Cleaners.  (It contained PERC at 33 ug/l.)

Everyone on the PLJ team felt like they had fallen through the looking glass.  Not only was DEC totally disregarding the letter and intent of the 1996 VCA, but it was generally taking two or three months (rather than the 30 days specified in the Agreement) to respond to submittals, and it was withholding approvals because of unexplained and inconsistent demands by DOH which was not even a party to the original Agreement.

Moreover, at this point—six-and-a-half years after entering into the VCA—PLJ no longer even owned the property but it had a large sum of money sitting in an escrow account that couldn’t be accessed until DEC issued a liability release.[vi]