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Comments of Broome County Environmental Management Council |
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February 25, 2003 |
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[Broome County Environmental Management Council Letterhead] February 25, 2003 Mr. Robert W. Schick, Western Remedial Action New York State Department of Environmental Conservation Division of Environmental Remediation 625 Broadway Albany, NY 12233Email: rxschick@gw.dec.state.ny.us Re: Comments on Draft Technical Guidance for Site Investigation and Remediation (Policy Program DER-10) Dear Mr. Schick: The Environmental Management Council (EMC) of Broome County is pleased to provide comments on the New York State Department of Environmental Conservation’s (DEC) DRAFT Technical Guidance (TechGuide) for Site Investigation and Remediation for your consideration during DEC’s open public comment period. The EMC, Broome County government’s citizen environmental advisory board, recognizes that contaminated site clean ups, both for the protection of public health and for economic reinvestment, are a high priority for New York State and its municipalities. The EMC’s Brownfields Subcommittee (BFSC) has been studying and prioritizing methods to address brownfields revitalization in Broome County, including monitoring developments with both federal and state legislation, existing and proposed funding sources, and creation of technical resources. The attached letter, prepared by the EMC BFSC and approved at the EMC’s general business meeting on February 6, 2003, summarizes points related to DEC’s “basic” scope of work requirements for cleanups and one of the four remedial programs addressed by the TechGuide, the Voluntary Cleanup Program. In July 2002, the EMC provided extensive public comments to the DEC on the Draft Voluntary Cleanup Program Guide, which are attached to this correspondence for reference. We hope you find the EMC’s input useful in preparation of the DEC’s final TechGuide. We look forward to helping make contaminated site cleanups a top priority issue to aid sustainable development efforts in New York State. Respectfully submitted,
Duke Holdsworth Stacy Merola
Chairman, Broome County
EMC Director, Broome County EMC cc: Dale Desnoyers, Acting Director, DEC Division of Environmental Remediation Andrew English, DEC Division of Environmental Remediation Kenneth Lynch, DEC Region 7 Director Jeffrey Kraham, Broome County Executive Terrance Kane, BC Deputy County Executive Julie Sweet, Commissioner, BC Planning and Economic Development Daniel Schofield, Chairman, BC Legislature Chris Burger, Chairman, BC Econ. Devel. & Planning Legislative Committee Louis Augostini, Legislative Clerk, BC Legislature William Gibson Jr., BC Attorney
Kenneth Kamlet, Chairman, EMC Brownfields
Subcommittee SM/dh
Enclosures [Broome County Environmental Management Council Letterhead] February 25, 2003
Mr. Robert W. Schick, Western Remedial Action New York State Department of Environmental Conservation Division of Environmental Remediation 625 Broadway Albany, NY 12233 Email: rxschick@gw.dec.state.ny.us Re: Comments on Draft Technical Guidance for Site Investigation and Remediation (Policy Program DER-10) Dear Mr. Schick: In response to the invitation to comment on the referenced DRAFT Technical Guidance (TechGuide), as set forth in the Environmental Notice Bulletin of Dec. 25, 2002, the Broome County Environmental Management Council (EMC) is pleased to offer the following comments. The EMC is Broome County government’s citizen advisory board on local environmental matters, with a mission to preserve, protect, and enhance the local environment. Our members are volunteers from a variety of occupational and professional backgrounds. In 2000, the EMC formed within its Natural Resources Committee a Brownfields Subcommittee (BFSC). The BFSC’s membership consists of both EMC members and numerous “Guest Experts.” The perspectives represented range from those of environmental lawyers, engineers, consultants, and university professors, to those of county and local planners and economic development officials, our County Health Department, the State DOT, our local electrical utility, a national environmental group, and members of the public. Our meetings are open to the public and are often attended by students from Binghamton University, members of NYPIRG, and interested area residents. 1. The TechGuide states (p. 3) that it is intended “to allow anyone seeking to investigate or remediate a potentially contaminated site in New York State to anticipate the basic scope of work the Department will require.” Comments:
a) Anything that promotes greater clarity and certainty on DEC
investigation and cleanup requirements is certainly a welcome change.
b) But the usefulness of the TechGuide is undercut by the presence of
numerous qualifications and disclaimers that leave DEC free to impose
open-ended additional requirements at its discretion. For example, the
TechGuide purports to contain “the minimum requirements” that DEC will
“normally” accept, but reserves the right to set alternative “acceptable
minimum technical activities” on a site-specific basis (p. 3). Nothing in
the TechGuide will protect an applicant from a decision by DEC “to require
additional investigation and/or remediation based upon site-specific
conditions” or to impose any other requirements that it deems necessary
based on its interpretation of the Navigation Law, the Environmental
Conservation Law, any regulation, or any applicable permit (p. 3).
c) Despite an exhaustive list of applicable standards, criteria, and
guidance [SCGs] (§§ 7.4 – 7.8) occupying four pages (pp. 100-103), the
TechGuide informs readers (p. 9) that projects must “utilize and comply with
all applicable SCGs” and that, while the SCGs listed in Section 7 “reflect
those typically utilized…, the list is not necessarily all inclusive.”
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The value of the TechGuide as a “road map” is limited if the
applicability of particular SCGs in specific circumstances cannot be
definitively specified. If additions to the list become necessary, they
should be addressed in future iterations of the TechGuide.
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As acknowledged in the TechGuide (§ 4.1(e)), the remedy
evaluation criteria (including SCGs) as set forth in 6 NYCRR § 375-1.10, are
modeled after the corresponding criteria under Federal Superfund in 40 CFR §
300.40. The Federal counterpart to SCGs are “ARARs” (“Applicable or
Relevant and Appropriate” regulatory requirements). ARARs were established
for use at Federal Superfund sites and were never viewed as
applicable to non-Superfund brownfield sites. SCGs were adopted under State
law in the context of State Superfund sites. Again, they were never
intended to be either “applicable” or “relevant and appropriate” to
lesser-contaminated brownfield or VCP sites.”
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If a subset of SCGs are indeed deemed relevant and appropriate
for use in connection with VCP sites, this more limited list should be fully
and specifically enumerated and should be treated as a comprehensive list
for VCP purposes. (If certain SCGs are to be modified in their application
to VCP sites to take account of the site’s anticipated future use, how this
modification is to be arrived at needs to be set forth clearly.)
d) The TechGuide occupies 103 pages plus 7 appendices. Doesn’t DEC have
enough confidence in its interpretation of its legal authority and technical
guidance to be willing to assure users of the TechGuide that, if they adhere
to its requirements, they will not be subject to additional regulatory
impositions? If new needs are identified, the appropriate remedy is to
revise or update the TechGuide – not to engage in ad hoc decision
making. e) In attempting to develop a single guidance document addressing the disparate needs and requirements of four separate and distinct remedial programs, the generalizations contained in the TechGuide should be subject to the use of alternate methods and approaches “when and where appropriate and technically justified.” (TechGuide, p. 5). The availability of such a “safety valve” is common in regulatory programs and we commend DEC for incorporating one here. However, while it is appropriate to give applicants the opportunity to propose and justify ways to more efficiently accomplish the end-result specified by DEC, it is not appropriate for DEC to reserve to itself the unconstrained latitude to impose additional requirements on applicants beyond those set forth in the voluminous TechGuide merely because a DEC project manager or higher-level supervisor feels that the guidance is “not sufficient to fully and adequately complete the project ….” (p. 5). 2. One of the four remedial programs addressed by the TechGuide is the Voluntary Cleanup Program (VCP). Comments:
a) It is difficult to escape the conclusion that both the TechGuide as a
whole, and the technical requirements applicable to VCP sites, would benefit
from being separated into two separate documents. We, accordingly, urge
DEC to move the technical requirements applicable to VCP sites into a
separate document independent of the TechGuide, but with cross-references as
appropriate.
b) Since, unlike the other programs addressed by the TechGuide, the VCP
depends for its success on entities with no culpability for contamination
(e.g., prospective purchasers and redevelopers) to voluntarily carry
out investigations and/or cleanups, DEC should take great pains to avoid
overwhelming potential volunteers with hundreds of pages of complex
technical requirements - many of them of questionable legal or technical
applicability to the low-risk “brownfield” sites typically addressed by the
VCP. In contrast to State Superfund and Oil Spill sites where responsible
parties can be compelled to clean sites to DEC’s satisfaction or be subject
to civil and criminal sanctions, VCP sites will languish and further
deteriorate if cleanup volunteers are deterred from coming forward by
excessive or otherwise intimidating requirements. And, in contrast to
municipally-owned Brownfield sites under the 1996 Bond Act (Environmental
Restoration Program) where comprehensive cleanup is required in return for
75% State funding and an ironclad indemnification against third-party suits,
VCP sites receive no such incentives. (All a cleanup volunteer receives if
it is fortunate or tenacious enough to withstand all of the requirements
imposed by DEC and/or the Department of Health (DOH) is a “liability
release” binding only on DEC and subject to multiple “reopeners.”)
c) The TechGuide acknowledges that the four remedial programs
addressed have differing program elements (Table 1, p. 3), typically use
varying oversight documents (Table 2, p. 4), and apply different names to
their existing remedial program elements (Table 4, p. 8). And, to its
credit, the TechGuide even acknowledges (§ 4.1, p. 68) that the remedial
action goal for the VCP differs from that of the other three programs.
(For the other programs, the goal is “the restoration of a site to
pre-disposal/pre-release conditions, to the extent feasible and authorized
by law.” However, for the VCP, the goal is “to be protective of public
health and the environment, given the intended use of the site” - with
the proviso that, “where an identifiable source of contamination exists at a
site, it should be removed or eliminated, to the extent feasible, regardless
of the presumed risk or intended use of the site.”) However,
there is little if any other acknowledgement in the TechGuide of the
risk-based cleanup orientation so essential to a viable VCP, but so alien to
the other three remedial programs. In the case of the VCP, DEC’s efforts to
address it in the same guidance that applies to the three statutory remedial
programs is more than a matter of comparing apples to oranges and
grapefruits; it is trying to force a square peg into a round hole. In the
process, both the “peg” and the “hole” are distorted.
d) While obliquely acknowledging the unique risk-based remedial
action goal of the VCP (on page 68 of a 135-page document), one would be
hard-pressed to identify anywhere in the TechGuide where specific guidance
is given on establishing risk-based cleanup objectives or on adjusting SCGs
to take this alternative cleanup endpoint into account. 3. With respect to individual aspects of the draft TechGuide as they relate to the VCP (e.g., ability to bypass formal site investigation and/or remediation requirements when there are no “recognized environmental conditions” warranting further action; setting a context for Qualitative Exposure Assessments, and the Community Air Monitoring Plan; appropriate modifications to Part 375 remedy evaluation factors in general and to applicable SCGs in particular; and insistence on the use of licensed professional engineers), please refer to the EMC’s previously submitted (July 31, 2002) “Comments on DRAFT Voluntary Cleanup Program Guide (May 2002)”, which are attached.
Thank you for your consideration of these comments. Respectfully submitted, Kenneth S. Kamlet Chairman, Brownfields Subcommittee of Broome County EMC
KK/sm
Attachment (EMC Comments on DRAFT Voluntary Cleanup Program Guide (May 2002))
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