Notes from the meeting held on

Wednesday, December 19, 2001

5^th Floor Conference Room

County Office Building, Binghamton, NY

Present: Stacy Merola, Joanna Corey, Frank Evangelisti, Ken Kamlet (Chair), Ron Brink, Chip McElwee, Paul Thompson, Wayne Jennings, and Cindy Westerman. Guest Experts: Tom Suozzo (DEC), Greg Lesniak (W. B. Satterthwaite Assoc.), and Maureen Hoke (Keystone Associates, LLC). AWE: Susan Cummins and Joe Moody.

1. The meeting convened at 4:30 p.m. On a motion from Chip McElwee, seconded by Cindy Westerman, the minutes from the last meeting (11/14/01) were approved as submitted.

2. Member Items of Interest

(a) Ken described a Sierra Club meeting he attended the previous evening (12/18) on the Atlantic Chapter’s 2002 legislative agenda. The Chapter’s legislative director, John Stouffer out of Albany, explained the group’s position on brownfields: “drive [brownfield] cleanups to pre-disposal conditions.” Ken said he questioned the wisdom of trying to hold innocent cleanup volunteers to the same stringent cleanup standard as responsible polluters. In his opinion, this will deter volunteers from coming forward and will result in more sites remaining undeveloped and unremediated. It will also push developers to pristine greenfield sites rather than to previously used brownfields, giving rise to new infrastructure requirements and urban sprawl. Ken said he also questioned the apparent inconsistency of the Sierra Club’s position on brownfields, which refuses to accept a less than perfect cleanup even when there are net environmental benefits, with the Club’s position on energy facility siting. In that case, although the group favors a moratorium on the siting of new power plants, it supports “repowering” (replacing a more polluting power plant with one that is less polluting) where there is a net environmental benefit. John Stouffer responded by pointing to a situation on Long Island where a restaurant was built on a former brownfields site contaminated with dry cleaning solvents, where the cleanup was inadequate and a fence wound up being put around the restaurant site which could not be used. Ken noted that extreme positions could be cited in both directions, but that the trick was to carve out a sensible position in the middle. In Long Island, the shallow groundwater is a primary groundwater source. Also, real estate is sufficiently costly that developers who purchase devalued brownfields can afford to spend a lot of money on expensive cleanups. In upstate New York, by contrast, real estate values are much lower and full-fledged cleanups will generally be cost prohibitive. Mr. Stouffer indicated that the Club’s position stands. Cindy Westerman, who was also at the Sierra Club meeting, said she agreed with Ken’s comments. It is a controversial topic that unfortunately seems to have no middle ground. [The minutes just got done saying the trick was to carve out a sensible position in the middle.]

(b) Ken then characterized the New York State Department of Environmental Conservation’s (DEC) position on voluntary cleanups as being strongly influenced by environmental groups and the State Department of Health (DOH). A developer will enter into a cleanup agreement with the local DEC regional office, agreeing to specified monitoring and cleanup requirements, but these requirements will steadily escalate over time. DEC field offices and even regional offices have little autonomy. They are constantly overruled by officials in Albany at DEC headquarters. Although DOH is not a party to voluntary cleanup agreements, DEC has adopted internal procedures not available to the public that preclude DEC signoffs on reports and completed cleanups without DOH’s written concurrence. This gives DOH a veto power that allows it to impose any requirements it chooses without explanation or justification.

(c) Tom Suozzo indicated that DEC will shortly be engaging in a rulemaking process to adopt formal regulations covering the voluntary cleanup program. He also mentioned that New Jersey is preparing a “cookbook approach” to brownfields cleanup based on what type of site is being remediated. This will go out for review and public comment in the near future. He encouraged the Brownfields Subcommittee to submit written comments in response to both of these actions.

(d) Ken provided Stacy with a tabulation he prepared in April 1996 comparing state brownfield and voluntary cleanup programs around the U.S. As of that point 6 years ago, 32 states had some form of brownfields program. Even then, New York State was one of the few that lacked a formal legislative or regulatory program. (By 2001, 48 states have adopted some form of brownfields and/or voluntary cleanup program. Even Puerto Rico, in August 2000 enacted a “Property Redevelopment and Voluntary Cleanup Program.”)

(e) Stacy reported briefly on the Brownfields seminar she attended in Utica on December 5^th. She indicated that the mood of many of the speakers and participants was very somber and pessimistic regarding the DEC’s Voluntary Cleanup Program and the budgetary constraints in the aftermath of September 11^th.

(f) There was some discussion of what it would take to give a boost to Broome County’s brownfields program. Ken expressed the view that an important step would be for local governments and the County to be more willing to take over ownership of underutilized brownfield sites with a view to characterizing them, cleaning them up, and putting them back on the market. Frank indicated that the Planning Department had discussed with the County Attorney the ability of the County to secure a court order allowing it to enter a privately owned brownfield site for the purpose of conducting environmental tests in situations where the site could be regarded as a blight on the landscape and a public nuisance. The County Attorney seemed confident that such an approach could be taken. Frank indicated that an attempt was being made to get in touch with City of Rochester officials to get more information on the similar approach that they have taken. Ken said it was ironic that the localities that have progressed the furthest in New York State have tended to be those that involve DEC the least. Another member suggested that there was probably a role that Binghamton University could play to assist the county and local governments. Stacy mentioned the SUNY-affiliated Center for Brownfields Studies in Utica that participated in the December 5^th seminar.

(g) Frank updated the group about the County’s submission to EPA on December 10^th seeking a $250,000 Brownfields Assessment Demonstration Pilot grant. For the application, Frank referred to specific brownfield sites in the County, including the Endicott Johnson site, Stow, Union Forging, and the DPW site in Binghamton—rather than dealing with the full range of sites generically. For the greenspace component of the grant, he addressed the forthcoming River Trail behind Binghamton Plaza. Some letters of support were attached to the proposal, but additional letters are being solicited. EPA has indicated that such letters could still be sent following the December 10 deadline. Ken suggested that a letter from the local Sierra Club could be quite helpful. Cindy Westerman indicated that the timing was bad because the local club just recently held elections and the executive committee won’t be meeting until some time in January to select new officers.

(h) The DEC anticipates the release of a NYS Brownfields Self-Help/Financial Resources Manual. Stacy requested a copy at the December Brownfields Conference in Utica.

3. Pennsylvania Land Recycling and Remediation Standards Act (“Act 2”): Greg Lesniak, P.E. from Walter B. Satterthwaite Associates, treated the group to a Power Point presentation on Pennsylvania’s statutory brownfields program, which was enacted in 1995. In promoting “land recycling,” Pennsylvania treats brownfield sites, not as environmental sites, but as real estate sites. Those that are in prime locations and offer other real estate benefits will be attractive to developers. Sites that lack these advantages cannot be made attractive to developers. “Act 2” deals with brownfields cleanup and reuse of industrial sites. “Act 4,” a companion bill, deals with the availability of funding in support of site reuse. Up to $200,000 per year (per site) is available for site investigation. Up to $1 million per year (per site) is available for remediation.

This program has been successful because it provides procedural certainty by clearly setting forth the rules of the game and the cleanup standards to be followed ahead of time. In most instances, the program does not require the complete cleanup that is inherent in New York programs to date. “Act 2” provides four types of risk-based standards that cleanup volunteers may follow: (a) statewide health standards - set forth in generic tables that differentiate between residential and non-residential uses, used aquifers versus those not used as a drinking water source, and direct contact versus ingestion/inhalation exposure scenarios - results in strong liability releases; (b) site-specific standards - tailored risk assessment based on the likelihood that contaminants will migrate offsite and adversely impact identifiable receptors under the conditions of a particular site; (c) cleanup to background standard - where site is contaminated from naturally occurring contaminants or upgradient releases; and the (d) Special Industrial Area Standard - for PA Department of Environmental Protection designated sites that are cleaned up for the specific intended uses - no direct contact hazards.

Although the Pennsylvania program could be criticized as allowing too much contamination to remain in-place, it has been quite effective in facilitating the beneficial reuse of underutilized brownfield sites.

Ken pointed out that the same positive result can be achieved without compromising environmental quality by combining a program that is not too harsh toward innocent purchasers and developers with vigorous enforcement against responsible polluters. The State of Maryland has taken the further step of supplementing its brownfields program with a Smart Growth initiative under which infrastructure funding is targeted into urban growth areas and away from sprawl-inducing projects far removed from such areas.

4. 2002 Work Plan

The next Brownfields Subcommittee meeting (January 16^th) will focus on the group’s agenda for 2002. This agenda will be incorporated into the EMC’s (and NRC’s) overall work plan(s).

Topics that were suggested by the group included, continue pursuance of funding sources for brownfields assessment and remediation, surveying local municipalities regarding their goals for cleanup, revisiting the process of screening and ranking sites and the possibility of securing an intern to help utilize the brownfields data contained in the County’s database/GIS system.

Ken mentioned that there was a blurb recently in the Press & Sun-Bulletin concerning a database being maintained by the Broome-Tioga Workforce Development System on available internships for the use of those seeking such positions. (Contact Jason Welch c/o Broome-Tioga Workforce Development Board: fax—778-2044; e-mail -- jwelch@co.broome.ny.us.) The Soil & Water Conservation District has funding from NYSEG to pay for one or two interns.

Prior to the next meeting, Ken will review the previously approved statement of goals and objectives for the Brownfields Subcommittee and draft a list of goals for 2002 for discussion by the group.

5. Next Meeting: The next meeting will be held on Wednesday, December 19^th at 4:30 p.m. The meeting adjourned at 6:00 p.m.

Recorder, Ken Kamlet

12/24/01

Editor, Joanna Corey