1) TIMING OF INVESTIGATION WORK PLAN IN RELATION TO EXECUTED BCA: At Brownfield
site P in Johnson City, NY (Broome County), where about half the site is currently
covered under a Brownfield Cleanup Agreement (necessary to enable that parcel to be
sold to the ultimate user), can the cleanup volunteer submit a BCP application
covering the remainder of the site now or in the near future, with the understanding
that the preparation of an Investigation Work Plan will be deferred until the
volunteer has a more concrete idea of the tenants or uses that will occupy the
remainder of the site and can construct a conceptual site plan?
Premise: More tailored and efficient investigation and remediation plans can be
prepared once the volunteer developer knows where the building footprints of the
redeveloped site will be. There is no risk in this case that the developer will
simply put this site in an indefinite holding pattern because the developer is
obliged under its contract with the former owner to secure Certificates of
Completion covering the entire site by no later than mid-2007.
Dale Desnoyers' Response: DEC would be comfortable with a
delay between entry into a BCA and submittal of an
Investigation Work Plan of no more than 4 months or so
(versus the more usual 40 days). But, as long as the
volunteer goes forward with the Investigation Work Plan
and investigation work, DEC would not have a problem with
the volunteer then putting off remedial action work until
a conceptual site plan can be put together. DEC's concern
is that landowners or developers not stockpile potential
projects in the BCP with no immediate plans to proceed
with an investigation or cleanup.
2) RELATIONSHIP TO AN EXISTING BCA OF NECESSARY IRM WORK IN A CONTIGUOUS
AREA: At the same site, the volunteer developer needs to address a
situation involving PCB-containing capacitors (some of them leaking)
before that part of the site can be brought under a separate BCP Agreement.
Yet, under the developer's contract with the Seller, it must ultimately
secure one or more Certificates of Completion encompassing the overall site.
At the direction of the DEC project manager, the developer has prepared an
IRM Work Plan encompassing both the capacitors and other electrical equipment
removed from one building that has been demolished and those from another
building which is slated for demolition in the near future. There appear to
be 3 alternatives:
(a) delay implementing the IRM Plan until a new BCP Agreement
has been negotiated (this is undesirable because the leaking capacitors need to be
remediated expeditiously);
(b)implement the IRM as soon as it is approved by DEC
and then subsume it within the existing BCA (although this would have the virtue
of being encompassed under a COC relatively quickly, it would probably delay issuance
of the COC for the first Parcel--which would be too bad, but not a serious problem);
this approach would also require some "stretching" of the geographic scope of
the existing BCA to encompass the capacitors from buildings that are not
geographically within the area covered by the existing BCA--although these are both
within 100-150 feet of the southern
NYSEG-Related Areas); or
(c) implement the IRM as soon as approved and then subsume it within the
new BCA, when executed, which will encompass the part of the site containing the
buildings with the capacitors (this is probably the preferred solution from the
developer's standpoint; although it would require retroactively incorporating an
already completed IRM into a future BCA, this shouldn't be a major concern because
the IRM work will be carried out in full coordination with DEC and under active DEC
oversight).
Note that incorporating this IRM under one BCA or the other is driven by
the developer's contractual obligations to the site's previous owner and is
not driven by the desire to inappropriately qualify the IRM work for BCP tax
credits. There would be no tax credit eligibility for work not paid for
or incurred under an applicable and already executed BCA.
Dale Desnoyers' Response: DEC has no objection to Option (c)
--as long as the developer will refrain from pursuing tax
credits for IRM-related work completed prior to entering into
a new Brownfield Cleanup Agreement covering that part of
the site.
3) PARTIES TO OVERLAPPING BCAs: This issue relates to a Binghamton parcel
("the Site") acquired by a developer from its previous (private) owner.
The parcel is part of a former Manufactured Gas Plant (MGP facility), the
assets of which were acquired by the local gas & electric utility (which,
therefore, is treated by DEC as a "participant" rather than a "volunteer"
under the BCP).
The volunteer developer has a Memorandum of Understanding with the local gas
& electric utility, reflecting the utility's commitment to assume
responsibility for any remedial investigation and/or cleanup work necessary
to resolve any MGP-related contamination issues at this site. The utility
will be entering into a separate BCA with DEC for the larger area surrounding
the Site to investigate and remediate any MGP-related issues in the outer
ring of the concentric circle surrounding the Site.
The issue: The DEC MGP Program manager indicated that DEC's preference was
that the volunteer developer be the sole BCP applicant on the Site and that
the local utility be the sole applicant on the broader MGP site--to avoid
the delay in securing a COC that would be necessitated if the utility, as a
"participant," were a party to the volunteer developer's BCA for the Site--
because "participants" are required to address offsite as well as onsite
impacts. The developer appreciated that DEC was interested in expediting
its receipt of a COC. However, the developer questioned why the utility could
not be a co-applicant on the Site, but still address offsite impacts under its
separate "outer circle" agreement with DEC. The statute requires participants
to address offsite impacts. In this case, the utility would be legally bound
to address those impacts under the scope of its separate BCA with DEC.
Why couldn't DEC issue a COC to the volunteer developer once onsite work is
completed at the Site--conditioned, if necessary, on the ultimate completion
of offsite work by the utility under its separate BCA? NOT including the
utility as a co-applicant with the volunteer developer entity at the Site
would create anomalies because most or all of the work that Newman would be
directed to be carried out on that Site would, in fact, be carried out by the
(as the real party in interest and under their MOU with the volunteer developer).
If the BCA for the Site requires, for example, that an Investigation Work Plan
be submitted within 40 days, the developer (if the sole applicant) will be at
the mercy of the utility as to the timing of that submittal. Logic really seems
to dictate that the utility be a co-party with the developer to the BCA for the
Site.
Dale Desnoyers' Response: While acknowledging that DEC
probably could have proceeded either way, DEC would prefer
in this instance that the BCA for the Site be strictly in
the name of the volunteer developer and that the BCA for
the surrounding MGP facility be strictly in the name of the
utility.
4) NEED FOR A "MARKER LAYER" ("DEMARCATION BARRIER") BENEATH PAVED AREAS
OF A REDEVELOPED BROWNFIELD SITE: At the request of the NYS Department of
Health, it has been the practice of DEC to require BCP cleanup volunteers and
participants to place a plastic or fabric "marker layer" or "demarcation barrier"
beneath a layer of clean fill or pavement that has been placed above zones of
soil containing residual contamination that DEC has allowed to remain in place
under a "Track 4" (or "Track 3") cleanup. The purpose of a marker layer is to
alert future developers and utility workers that contamination residues may lie
beneath that may require a soil management plan or other precautions before future
construction or utility workers may safely disturb it.
Issue: While a marker layer makes sense in landscaped areas of a site, where
there would otherwise be nothing to visually differentiate a clean fill cap from
underlying material, it appears to make less sense in paved areas of the site--
especially where there are alternative ways to put future construction workers
on notice that underlying soil may require special handling. Specifically,
construction or utility workers are not likely to do any construction or drilling
work without first checking engineering plans for the potential presence of
underground utilities, etc., that could be damaged if safeguards were not taken.
If such plans are clearly marked to make clear the need to check with
DEC before penetrating an asphalt covering, it would seem that the desired
objective would be met. From the standpoint of a prospective redeveloper,
the need to place snow fencing or other marker material beneath a large
expense of pavement (25 acres or more on a 30-acre site, for example)
interposes a large expense and a significant delay factor--even though
the per cubic yard unit cost of snow fencing--a commonly used marker material--
may be small. This additional cost and delay don't appear to be justified by the
very limited incremental benefit, if any.
Dale Desnoyers' Response: DEC agrees!
5) NEED FOR A NEW PUBLIC NOTICE AND COMMENT PERIOD ANY TIME DEC REQUIRES
SUPPLEMENTATION OR REVISION OF AN INVESTIGATION (OR REMEDATION) WORK
PLAN: This situation has arisen at a former industrial site in Syracuse
(the Site). Developers (the prospective cleanup volunteers) are awaiting
a letter from the project manager as to what additions DEC wants us to make
in the otherwise completed Investigation work. The cleanup volunteers have
no problem with expanding the investigation to fully address whatever DEC
may require. The only concern is that, if DEC requires a new public notice
and comment period to address the additions, the developer's "due diligence"
period will expire without the developer having a good handle on the ultimate
remediation requirements and costs--the circumstances of the real estate deal
don't allow for additional procedural delays. This is very expensive land, such
that much higher remediation costs than expected could shift this project
from the viable to the non-viable category--and that decision needed to be made
in the next month. The public isn't going to care that some fine-tuning changes
have been made to the investigation work plan (beyond taking comfort in the fact
that DEC is exercising careful oversight in their behalf). Any changes that
have a bearing on what remediation will be required will be the subject
of a fresh opportunity for public review and comment at the point that a
proposed Remedial Action Work Plan is submitted.
Dale Desnoyers' initial reaction: DEC didn't see the need for a new public
comment period--as long as the revised work plan was placed in the document
repository and a notice or fact sheet was issued to alert the public to that
fact.
Dale Desnoyers' Official Response:
The following was circulated to DEC staff
(on or about 1/21/05):
The issue has arisen several times with respect to the process to
approve modifications to an approved work plan and or requests for
additional work to be done.
For additional investigation activities requested AFTER the
Investigation Work Plan has been approved:
any request for additional investigation activities after the WP
approval should be treated as a modification to the approved work plan
and not as a separate work plan--regardless of the extent of the
modifications. These modifications don't trigger a new notice/fact
sheet or 30 day public comment period. The changes should be reflected
in a document which is placed in the public repository.
For additional remedial activities requested AFTER the remediation work
plan has been approved:
we would treat this the same as we do for modifications of SSF RODs --
see TAGM 4059 for more detailed information than what follows:
Minor changes to the approved remedial work plan: the basis for the
change is documented in the project file.
Significant but not fundamental changes to the remedial work plan will
result in the Department issuing an Explanation of Significant
Differences (ESD). It is not necessary to amend a Remedial Work Plan in
order to make a significant change to the remedy, because the Department
is not reconsidering the overall remedy. The ESD is issued to all
persons on the site contact list.
Fundamental changes to the remedial work plan include a fundamental
change in the scope, performance, or cost of a remedy. In that case, the
Department uses the same public participation and documentation
procedures used to complete an original remedial work plan (public
notice, issuance of a remedial work plan that discusses the proposed
amendment, public meeting, responsiveness summary, etc.).
6) NEED TO TEST "CLEAN FILL" OBTAINED FROM A COMMERCIAL SUPPLIER: At
one BCP site, the cleanup volunteer was told by DEC that, if it wished
to re-use top soil or crushed concrete from elsewhere on the site as
"clean fill" to be placed above the "marker layer," it would be necessary
to test the material (to the extent of at least one sample for every 500 to
1,000 cubic yards of material) to demonstrate that no contaminants are present
that exceed any individual TAGM limit. This made abundant good sense and was
not a problem.
However, the same requirement was later applied to fill that was proposed to be
brought in from: (a) a nearby school property (with no prior history of
spills or industrial use), and (b) from a nearby shopping center site
(with no prior history of spills or industrial use). This seemed to be a bit
of overkill given the source(s) and uncontaminated origin(s) of this
material, but the cleanup volunteer went along with it.
Then, the cleanup volunteer looked into acquiring clean fill from a
commercial sand and gravel quarry (with no prior history of spills
or industrial use) and the volunteer was told again that the same
sampling and testing regimen would have to be followed. This makes
little or no sense (with all due respect)--since sand or gravel from
the same source could readily be used as fill in a residential backyard
or at a daycare or nursery facility with no need to subject it to
environmental tests.
It's one thing to require testing when the source is questionable and
contamination is a realistic possibility. It's quite another,
to require testing when there is no plausible basis for anticipating that
the material is contaminated (especially when it is proposed for use as
fill on a former industrial site). This may appear to be a minor concern
in the cosmic scheme of things, but if redevelopers are to be attracted to
the BCP, it is important that the requirements applied comport with common
sense. Where contamination is a plausible concern, whatever testing is
needed should certainly be done. Where there is no reason to suspect
contamination, costly and time-consuming testing should not be required.
Dale Desnoyers' Response: DEC is sympathetic to the concerns
expressed. However, the statute requires documentation
that material used as "clean fill" is, in fact, "clean."
DER will explore with the Mining Division the feasibility
of establishing a system under which operators of commercial
sand and gravel mining and distribution facilities could
voluntarily submit test results for their sand and gravel
material, documenting its "clean" status--thereby obviating
the need for purchasers wishing to use it as "clean fill" at
BCP sites to repeatedly retest it to make the same demonstra-
tion. Sand and gravel distributors would have an economic
incentive to conduct such testing as a means of attracting
brownfield redevelopers as customers.
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