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My name is Ken Kamlet. I am a Greater Binghamton-based environmental attorney with more than three decades of experience in the environmental public policy arena. (An abbreviated Bio is attached as Exhibit I.) I currently serve as Director of Legal Affairs for Newman Development Group, LLC (NDG)—a major Southern Tier and Central New York commercial developer. NDG also has offices in Plymouth Meeting, PA and San Francisco, CA, and has active projects in Pennsylvania, New Jersey, California, Washington, and Oregon, in addition to New York State. Many of our projects, including 7 or 8 in Greater Binghamton, and one in Syracuse in coordination with the Pioneer Companies, are constructed on former “brownfields.” Soil vapor intrusion, the subject of this hearing, has been an issue at several of these sites.

I would like to commend Chairman DiNapoli on two counts: first, for holding this public hearing and the previous hearing in November in Endicott; and, second, for his leadership in passing a strong Brownfield Cleanup Program law a year-and-a-half ago. Thank you, Mr. Chairman, for your leadership on these issues and for the invitation to testify today.

Introduction

Since I am not an Ithaca resident, I do not presume to know as much as others in this room about local, Ithaca-area vapor intrusion issues. So, I will confine my remarks today to a discussion of some broader public policy issues related to the interface between the Brownfield Cleanup Program and the State’s emerging Vapor Intrusion Program.

Emerging vapor intrusion concerns are clearly shaping the development of new vapor intrusion policies and guidance. And these policies and this guidance are having an effect on all kinds of contaminated sites—including brownfield sites—both going forward and retrospectively. My concern is that we need to avoid having one important program—on vapor intrusion—have a devastating negative impact on another important program—the Brownfield Cleanup Program.

To lay the groundwork for my brief comments on this issue, it is necessary to outline the relevant framework and objectives of the Brownfield Cleanup Program.

First, it is a fundamental premise of the Brownfield Cleanup Program or “BCP” that it is good for both the environment and the economy to encourage developers and other investors to voluntarily clean up and redevelop low or moderately contaminated “brownfield” sites—especially where viable “responsible parties” cannot be found who could be forced to carry out such cleanups. Specifically, the BCP law, finding that “there are thousands of abandoned and likely contaminated properties that threaten the health and vitality of the communities they burden, and that these [brownfield] sites… are also contributing to sprawl development and loss of open space,” declared it to be State policy “to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment ….” § 27-1403.

Second, in enacting the BCP law, the Legislature clearly agreed with the old aphorism that “you can attract more flies with honey than with vinegar,” recognizing that “punishing the innocent” would not be an effective way to encourage volunteers to redevelop contaminated properties.

Thus, the new law, while insisting that brownfield cleanups in all cases protect public health and the environment, does not require that brownfield sites be restored to Garden of Eden levels of pristineness—or even that all sites be cleaned to Residential standards. Rather the remedial program at a brownfield site need only “achieve a cleanup level that will be protective for the site’s current, intended or reasonably anticipated residential, commercial, or industrial use with restrictions and with reliance on the long-term employment of institutional or engineering controls to achieve such level.” See, §§ 27-1415.3(g),(i).

Although the law sets a general mandate (§ 27-1415.1) that “the target risk of residual contamination at a site shall not exceed an excess cancer risk of one in one million[1] for carcinogenic end points,” the law also allows approval of a cleanup with an excess cancer risk of more than one in a million in the case of a restricted use (“Track 4”) cleanup, where institutional or engineering controls effectively reduce the risk to the one in a million level. (Indeed, the law even allows DEC to waive the need for institutional and engineering controls where a specific contaminant at a specific site exceeds the one in a million risk level, where DEC is able to make a site-specific finding, in consultation with DOH, that the level of residual contamination will be protective of public health and the environment. § 27-1415.4.)

Third, the BCP law makes only two explicit and two implied references to the vapor intrusion issue. In setting forth a “hierarchy of source removal and control measures,” Section 27-1415.5(c) specifies that “elimination of exposure”—including “the elimination of volatilization into buildings… to the greatest extent feasible”[2]—should be employed “to any source remaining following removal, treatment and/or containment ….” At each level of the hierarchy, source removal and control measures must be carried out to “the greatest extent feasible.” “Treatment of [the] source at the point of exposure”—including, as applicable, “the management of volatile contamination within buildings,” is to be “considered as a measure of last resort.” § 27-1415.5(d).

The implicit references are in Section 27-1415, dealing with “remedial program requirements.” Section 27-1415.1 requires all remedies to be “protective of public health and the environment including but not limited to… air (including indoor air)….” Section 27-1415.2(a) goes on to specify that the remedial investigation must “fully characterize the nature and extent of contamination at and/or emanating from a brownfield site”—including “assessment of the existing and potential impact of groundwater contamination on… indoor air quality.”

The applicant is free to select the remedy after developing and evaluating “at least two remedial alternatives” (for all restricted-use cleanups) as part of a DEC-approved alternatives analysis (§§ 27-1411.1(c), 27-1413)—except that, for sites that DEC has determined constitute a “significant threat,” DEC is to select the remedy from the approved alternatives analysis.

Fourth, in selecting the remedial program for a brownfield site, the applicant is required to conform to applicable (or relevant and appropriate) standards, criteria and guidance (SCGs), unless “good cause” exists why “conformity should be dispensed with.” § 27-1415.3(a). One of the “good cause” factors is if “conformity… is technically impracticable from an engineering perspective.”

Among the general factors to be considered in remedy selection are “implementability” and “cost effectiveness.” Another, as noted above, is “[t]he current, intended, and reasonably anticipated future land uses of the site and its surroundings….” §§ 27-1415.3(g),(i). And another is “[p]otential vulnerability of groundwater to contamination that might migrate from the site ….” § 27-1415.3(v).

Fifth, the law also authorizes the DEC commissioner to develop a list of presumptive remedial strategies “for specific site types and/or contaminants based upon historical patterns of remedy selection and the department’s scientific and engineering evaluation of performance data on technology implementation.” § 27-1415.8. And the DEC commissioner, in consultation with the commissioner of health, is directed to “consider and encourage the use of innovative technologies which will meet the remedial objectives of this title.” The commissioner is also directed, in consultation with the president of the environmental facilities corporation, to “encourage the development of such technologies.” § 27-1415.9.

Sixth, further recognizing the distinction between responsible parties (“participants”) and cleanup volunteers, while both volunteers and participants must fully characterize site contamination and prevent the further migration of contamination from the site to the extent feasible, only participants are obliged to “fully investigate and characterize the nature and extent of contamination emanating from” a brownfield site (§§ 27-1411.1, .1(a)) and to prevent, to the extent feasible, the further migration of groundwater plumes. § 27-1415.5(b). For sites being addressed by volunteers, where off-site groundwater contamination emanates from the site, DEC “is responsible” for remediation—at least where the site has been determined (§ 27-1411.1(d)) to be a “significant threat.” § 15-3109.3.

While participants are required to remedy both on- and offsite contamination, volunteers are obliged to remedy only on-site sources—although they must exercise “appropriate care” to stop any continuing releases, prevent any threatened future releases, and prevent or limit exposure to any previously released hazardous substances (§ 27-1405.1(b)). At BCP sites addressed by volunteers, if the site poses a significant threat, DEC is required to pursue enforcement against any known or suspected responsible parties. If such action cannot be brought or is not successful, DEC must use “best efforts to begin a remedial program to perform the remediation of off-site contamination at such site within one year of the completion of such enforcement action or the completion of the volunteer’s remedial program, whichever is later.” § 27-1411.6.

In addition, volunteers can receive a liability release for natural resource damages, but participants/responsible parties cannot. § 27-1421.1.

Seventh, brownfield Certificates of Completion and liability releases are subject to six “re-openers” or “reservation of rights” under Section 27-1421.2(a)—including “environmental contamination at, on, under, or migrating from the brownfield site if, in light of such conditions, the site is no longer protective of public health or the environment” (“public health” re-opener); and “a finding by the department that a change in an environmental standard, factor, or criteri[on] upon which the remedial work plan… was based, which renders the brownfield site remedial program implemented at the site no longer protective of public health or the environment” (“changed standards” reopener). It should be noted that, while the “public health” reopener is a carryover from the previous, extra-statutory Voluntary Cleanup Program (VCP), liability releases under the VCP did not typically contain a “changed standards” reopener.[3]

Eighth, municipally-owned brownfield sites that are remediated under the Environmental Restoration Program (created under the 1996 Clean Water/Clean Air Bond Act), not only receive a liability release, but are indemnified and held harmless by the State against third-party claims. Moreover, ERP cleanups are not subject to “public health” or “changed standards” reopeners. See ECL § 56-509, as amended by Part D of the BCP law.

And, finally, recognizing that financial incentives are necessary to attract redevelopers and other investors to most brownfield sites and to accomplish the substantial environmental and economic benefits of cleaning up and revitalizing the State’s tens of thousands of brownfield sites, the Legislature wisely established a series of brownfield tax credits to encourage voluntary cleanups. BCP law, Part H. Such credits are available only for eligible expenditures at sites that receive Certificates of Completion (“remediation certificates”) from DEC and only for “the taxable year in which the effective date of the remediation certificate occurs.” (In certain cases, such as the credit for on-site groundwater remediation costs, credits may be allowed—in the taxable year such qualified costs are incurred and paid—for up to five taxable years after issuance of the Certificate of Completion.)

Can New Vapor Intrusion Policies be Applied to Brownfield Sites without Crippling the BCP?

DEC has a draft Vapor Intrusion Policy and DOH has draft Vapor Intrusion Guidance out for public comment (the comment deadline on the DOH guidance has just been extended until May 31^st; the comment deadline on the DEC Policy was previously extended until April 23^rd). While vapor intrusion is an important issue that can only benefit from clearer policies and guidance, I am very concerned that unduly complex evaluation requirements and, especially, unduly stringent cleanup endpoints that are not directly tied to harmful exposures, could have a devastating impact on the new Brownfield Cleanup Program, just as it is beginning to pick up momentum. This would amount to “throwing the baby out with the bathwater” and would be most unfortunate.

My comments to DEC on its draft Vapor Intrusion Policy are attached as Exhibit II. An article by Jesse Hiney and myself, published by the Bureau of National Affairs, which addresses the issues posed by the draft Policy more extensively, is attached as Exhibit III.

Public and political sentiment on vapor intrusion has come full circle. Just a few short years ago, vapor intrusion did not receive the attention it deserved and the potential for chlorinated solvents in soils and groundwater to enter building structures and contaminate indoor air was underestimated.[4] It is appropriate and important that this imbalance should be rectified and that vapor intrusion should receive the attention that it is due. I fear, however, that we are now overcompensating and that the media frenzy directed at this issue could lead to some very poor public policy—one of the major casualties of which could be New York’s promising new brownfields program.

Here are some examples of the “reverse auction” mentality at work as New York State communities “bid” for lower and lower vapor intrusion limits:

While protection of public health and the environment must be a foremost concern, other significant interests and implications must also be considered—especially in the context of brownfields redevelopment, where the burden of environmental investigation and cleanup falls primarily on “volunteers” who neither caused nor contributed to contamination of the sites they are seeking to redevelop. Although the focus of the public debate in Endicott, Hillcrest, and East Fishkill has been the threshold at which venting systems must be installed in residential buildings, the potential cost to brownfield cleanup volunteers is far higher than the costs of such relatively inexpensive mitigation systems. Also, to the extent these incremental costs go beyond what is necessary to limit human exposures to toxic vapors in indoor air, they have the potential to negatively and unfairly impact innocent cleanup volunteers at new and old brownfield sites out of all proportion to resulting public health and environmental benefits.

Specifically, while DOH has focused on mitigation and monitoring, DEC’s focus under its proposed Vapor Intrusion Policy, is on the removal or treatment of VOCs in soil and groundwater that might (or might not) have the potential to get into structures and contaminate indoor air. The costs of characterizing and controlling VOC source areas, as DEC has proposed to require, are orders of magnitude greater than the costs of mitigation systems. It is one thing to impose these costs on the Responsible Parties who caused this contamination. It is quite another to impose these costs on innocent cleanup volunteers at brownfield sites.

The potential disruptive effect of the draft DEC Policy is compounded by the fact that the primary initial focus of the new Policy is on so-called “legacy” sites where required cleanups were approved prior to 2003. Innocent brownfield cleanup volunteers will be required under this Policy to do more than simply evaluate vapor intrusion as a new potential exposure pathway going forward at new sites—where at least they know in advance what they are up against. (At least, at a new site, a prospective purchaser or redeveloper has the opportunity to assess whether a potential vapor intrusion problem exists and how much it may cost to address it—and, if the costs exceed the potential return on investment, the opportunity to walk away.)

DEC is proposing to go much further and is asking those who gratuitously (i.e., without any legal liability or obligation) invested in the cleanup and redevelopment of brownfield sites in the past and received DEC’s “blessing” (in the form of a Certificate of Completion and liability release) and moved on to other endeavors, to revisit many of these sites and to pour additional large sums of money into sampling and testing them for VOCs and vapor intrusion at a cost that may far exceed their return on investment for the project (and, as noted above, may be out of all proportion to the resulting public health benefits).

What impact is this likely to have on the willingness of prospective brownfield redevelopers and investors to take a chance on a brownfield site?

Uncertain potential health effects of VOCs in soils and groundwater at brownfield sites—which may or may not result in toxic vapor exposures to occupants of potentially affected structures—must be weighed against the certainty of deterring volunteers from investing in the cleanup and redevelopment of such sites. Prospective purchasers or redevelopers will be less inclined to invest in a site that requires costly soil or groundwater remediation (or soil vapor management), with the result that more blighted properties will continue to depress the economy and contaminate the landscape. This is especially true in Upstate New York’s hard-hit urban centers, where real estate values are too low (even when supplemented with tax credits and other incentives) to support significant cleanup costs and liability exposures.

It follows that, especially in the brownfields context, the “rules” governing the control of vapor intrusion need to be both clear and flexible, with an emphasis on results and exposure potential (i.e., interrupting the vapor intrusion exposure pathway, so that harmful vapors are unable to reach sensitive receptors), rather than on rigid concentration-based limits or complex evaluation procedures. In other words, the approach should be “performance-based,” rather than relying on inflexible “command-and-control” methodologies or standards.

An emphasis on results and impacts rather than on methodologies or standards will also help promote the Brownfield Law’s directive (ECL, Title 14, § 27-1415.9) that DEC “consider and encourage the use of innovative technologies” that can achieve the health and environmental protection objectives of Title 14—in this case, to interrupt—by conventional or unconventional means—the vapor intrusion exposure pathway.

While the focus of brownfield cleanups is and ought to be protection of public health and the environment, rigid insistence( in the brownfields context) on removal of VOC “sources” so that residuals do not exceed an arbitrary numerical threshold or an incremental lifetime cancer risk level of 1 in a million, is often not justifiable and may be counter-productive.

It would be unfortunate and counter-productive if commendable efforts to protect the public against health-threatening Vapor Intrusion that contaminates the indoor air of homes were allowed to mutate into a wide-ranging and costly “witch hunt” for VOC-contaminated sites that have a far more tenuous public health link. It would be especially unfortunate and counter-productive if a fall-out of such efforts was the crippling of the State’s equally commendable Brownfield Cleanup Program.

Fortunately, protecting public health from the ravages of uncontrolled Vapor Intrusion and preserving the momentum and efficacy of the State’s brownfields revitalization efforts are not, and need not be, mutually exclusive. My conclusions and recommendations on how to strike the correct public policy balance can be summarized as follows:

1. The State, in its praiseworthy efforts to address Vapor Intrusion-related public health threats, should endeavor to avoid disrupting the Brownfield Cleanup Program’s socially beneficial encouragement of voluntary brownfield cleanups.

2. Brownfield cleanup volunteers at sites with no “current, intended or reasonably anticipated” residential use should not be required to investigate or remediate vapor intrusion precursors beyond what is reasonably necessary to protect public health or the environment.

3. Where “source” removal or treatment of potential vapor intrusion precursors at a brownfield site is not feasible, the focus of remediation efforts should be on elimination of exposure—which will generally be the best way to achieve maximum health protection benefits without imposing crushing costs on innocent cleanup volunteers.

4. Where brownfield cleanups completed prior to the advent of the BCP law are revisited at the behest of DEC or DOH to investigate the presence of vapor intrusion precursors and the potential for health-threatening indoor air contamination, the costs of desired follow-up investigations and/or remediation should be borne by Responsible Parties or the State (similar to the handling of costs for offsite migration of contaminants, and any Natural Resource Damages, under the BCP). It would be unfair and legally suspect to retroactively impose these costs on brownfield cleanup volunteers who previously completed their VCP obligations in good faith to the satisfaction of DEC and DOH.

5. Even where a potential vapor intrusion pathway is being addressed prospectively at a new BCP site—where cleanup volunteers at least have the ability to evaluate the facts and make a business judgment on whether to move forward with redevelopment efforts—the State should take care not to “punish the innocent” (particularly at low-value Upstate sites) by imposing Superfund-caliber investigation and remediation requirements (and costs) on brownfield volunteers.

6. DEC and DOH should give high priority to identifying and encouraging the use of innovative technologies to address the vapor intrusion exposure pathway, as well as to developing a list of “presumptive remedies” for recurring situations where vapor intrusion is a plausible concern. Anything that reduces time delays and other transaction costs, and promotes efficiency and cost-effectiveness, should be explored and aggressively pursued.

7. Brownfield certificates of completion should not lightly be re-opened at brownfield sites (whether new or old, private or municipal) to address belatedly recognized vapor intrusion precursors or other VI concerns. Cleanups of municipally-owned brownfields are not subject to re-openers under the ERP—and even if they were, new VI-related requirements would be covered by the statutory State indemnification. For privately owned sites, the “public health” re-opener (under both the VCP and the BCP) is a questionable basis for mandating further measures (at the volunteer’s expense) to determine whether a previously unrecognized public health threat exists. Even the “changed standards” re-opener (under the BCP and a minority of VCP sites) is a dubious hook to hang site-screening studies (under DEC policy or DOH guidance) designed to assess if regulatory thresholds might be exceeded. Finally, brownfield certificates of completion should especially not be re-opened at BCP sites where it is unclear that post-COC expenditures by the cleanup volunteer will be eligible for brownfield tax credits.

8. The State should not impose on private parties more expansive and stringent mitigation or cleanup requirements at Vapor Intrusion sites than it is prepared to assume itself at sites for which the State has responsibility. Regardless of who pays the bill, funds that are spent beyond what is reasonably necessary to protect public health and environment, are funds that are unavailable to further other important environmental and economic development objectives. There is no “free lunch.”

9. The incremental cancer risk threshold of one-in-a-million set forth in the BCP law is tantamount to a zero-risk standard, which ordinary people do not practice in their daily lives—or they would never cross the street or travel in an airplane. Vapor Intrusion policies, guidelines, and standards should not seek to meet this unrealistic and exorbitantly costly threshold—especially when applied to innocent brownfield cleanup volunteers. As allowed and contemplated in the BCP law, a less onerous standard should be acceptable on a site-specific basis as long as it can be shown to protect public health and the environment. DOH and DEC should not succumb to “reverse auction” public pressure to enforce everywhere the lowest (most stringent) indoor air standards applied anywhere.

10. DOH’s emphasis on monitoring [subject to the caveat below] and mitigation to address Vapor Intrusion public health concerns should be emulated by DEC and given preference and priority—especially at brownfield sites—over dramatically more costly source removal and treatment approaches—except where significant incremental public health and environmental benefits can be shown to result. (However, DOH should strive for a more flexible tiered or phased approach that does not require exhaustive sub-slab, indoor, and outdoor testing—at levels of detail and documentation that resemble research projects—virtually anywhere in the State where a building exists over soil or groundwater with any detectable levels of VOCs.)

Protecting our citizenry from health-threatening vapor intrusion at dozens or hundreds of New York State sites and promoting volunteerism at the State’s tens of thousands of brownfield sites are not mutually exclusive. The State needs and deserves vigorous and effective programs in both areas. Let us not throw the baby out with the bath water.

[1] The concept of a one-in-a-million risk of developing cancer as a definition of acceptable risk has a murky origin and a debatable technical validity. According to at least one author (Kathryn E. Kelly, Dr.P.H., “The Myth of 10^-6 as a Definition of Acceptable Risk,” http://deltatoxicology.com/pdf/10-6.pdf ), this risk threshold originated as “a completely arbitrary figure adopted by the FDA as an ‘essentially zero’ level of risk for residues of animal drugs… [which] was specifically not intended to be used as a definition of acceptable risk ….” Not only do other states and the federal government use a much higher acceptable risk threshold, but Massachusetts DEP characterizes its cancer risk limit of 10^-4 (one in 10,000)—which is 100 times less stringent than New York’s—as “very strict” based on the fact that, in the United States, “the risk of an individual developing cancer is 1 in 4” (i.e., 2.5 x 10^-1). Maintaining “the most stringent environmental and public health standards in the nation,” as New York State has boasted that it does (see, e.g., Governor Pataki Press Release of April 18, 2001), while seemingly a commendable objective, has definite costs. Not only does it greatly increase environmental compliance costs in New York State—with dubious benefits against the backdrop of an overall 1-in-4 lifetime cancer risk of the average American—but it serves to make voluntary cleanups less attractive. Also, by adopting more stringent standards than those of neighboring states, New York places itself at a competitive disadvantage in attracting economic development.

[2] “Feasible” is defined to mean “suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective.” § 27-1405.12.

[3] Re-openers under the old VCP are relevant to the vapor intrusion issue from the standpoint of DEC’s announced plans to revisit pre-2003 “legacy” sites, including completed brownfield sites, to determine whether further investigation and/or remediation of vapor intrusion is necessary. Since the law creating the BCP program was enacted in 2003, all pre-2003 sites that did not subsequently “transition” into the BCP are subject to cleanup agreements under the VCP.

[4] Vapor intrusion is a widespread concern and it needs to be addressed. It first emerged as an environmental issue in the early 1980s in Silicon Valley, CA. Today, at least 852 of the nearly 1,500 federal Superfund sites have identified the most common volatile organic compound (VOC)—trichloroethylene (TCE)—as a contaminant of concern. VOCs and vapor intrusion are also issues at many other sites, including State Superfund and Brownfield sites. Vapor intrusion as a potential human exposure pathway clearly needs to be considered in the investigation and cleanup of contaminated sites. This includes the development of guidance and regulations in the implementation of New York State’s new Brownfield Cleanup Program legislation.

ny-brownfields.com	Vapor Intrusion Hearings, Ithaca, NY - April 21, 2005
ny-brownfields.com	Before NYS Assembly Standing Committee on Vapor Intrusion, Hon. Tom DiNapoli, Chairman
	Testimony of Kenneth S. Kamlet
	STATEMENT OF KENNETH S. KAMLET, ENVIRONMENTAL ATTORNEY, AT PUBLIC HEARING ON “VAPORIZATION OF CONTAMINANTS FROM SOIL AND GROUNDWATER INTO INDOOR ENVIRONMENTS,” BEFORE THE ASSEMBLY STANDING COMMITTEE ON ENVIRONMENTAL CONSERVATION, ITHACA, NY, APRIL 21, 2005 My name is Ken Kamlet. I am a Greater Binghamton-based environmental attorney with more than three decades of experience in the environmental public policy arena. (An abbreviated Bio is attached as *Exhibit I.) I currently serve as Director of Legal Affairs for Newman Development Group, LLC* (NDG)—a major Southern Tier and Central New York commercial developer. NDG also has offices in Plymouth Meeting, PA and San Francisco, CA, and has active projects in Pennsylvania, New Jersey, California, Washington, and Oregon, in addition to New York State. Many of our projects, including 7 or 8 in Greater Binghamton, and one in Syracuse in coordination with the Pioneer Companies, are constructed on former “brownfields.” Soil vapor intrusion, the subject of this hearing, has been an issue at several of these sites. I would like to commend Chairman DiNapoli on two counts: first, for holding this public hearing and the previous hearing in November in Endicott; and, second, for his leadership in passing a strong Brownfield Cleanup Program law a year-and-a-half ago. Thank you, Mr. Chairman, for your leadership on these issues and for the invitation to testify today. Introduction Since I am not an Ithaca resident, I do not presume to know as much as others in this room about local, Ithaca-area vapor intrusion issues. So, I will confine my remarks today to a discussion of some broader public policy issues related to the interface between the Brownfield Cleanup Program and the State’s emerging Vapor Intrusion Program. Emerging vapor intrusion concerns are clearly shaping the development of new vapor intrusion policies and guidance. And these policies and this guidance are having an effect on all kinds of contaminated sites—including brownfield sites—both going forward and retrospectively. My concern is that we need to avoid having one important program—on vapor intrusion—have a devastating negative impact on another important program—the Brownfield Cleanup Program. To lay the groundwork for my brief comments on this issue, it is necessary to outline the relevant framework and objectives of the Brownfield Cleanup Program. First, it is a fundamental premise of the Brownfield Cleanup Program or “BCP” that it is good for both the environment and the economy to encourage developers and other investors to voluntarily clean up and redevelop low or moderately contaminated “brownfield” sites—especially where viable “responsible parties” cannot be found who could be forced to carry out such cleanups. Specifically, the BCP law, finding that “there are thousands of abandoned and likely contaminated properties that threaten the health and vitality of the communities they burden, and that these [brownfield] sites… are also contributing to sprawl development and loss of open space,” declared it to be State policy “to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment ….” § 27-1403. Second, in enacting the BCP law, the Legislature clearly agreed with the old aphorism that “you can attract more flies with honey than with vinegar,” recognizing that “punishing the innocent” would not be an effective way to encourage volunteers to redevelop contaminated properties. Thus, the new law, while insisting that brownfield cleanups in all cases protect public health and the environment, does not require that brownfield sites be restored to Garden of Eden levels of pristineness—or even that all sites be cleaned to Residential standards. Rather the remedial program at a brownfield site need only “achieve a cleanup level that will be protective for the site’s current, intended or reasonably anticipated residential, commercial, or industrial use with restrictions and with reliance on the long-term employment of institutional or engineering controls to achieve such level.” See, §§ 27-1415.3(g),(i). Although the law sets a general mandate (§ 27-1415.1) that “the target risk of residual contamination at a site shall not exceed an excess cancer risk of one in one million[1] for carcinogenic end points,” the law also allows approval of a cleanup with an excess cancer risk of more than one in a million in the case of a restricted use (“Track 4”) cleanup, where institutional or engineering controls effectively reduce the risk to the one in a million level. (Indeed, the law even allows DEC to waive the need for institutional and engineering controls where a specific contaminant at a specific site exceeds the one in a million risk level, where DEC is able to make a site-specific finding, in consultation with DOH, that the level of residual contamination will be protective of public health and the environment. § 27-1415.4.) Third, the BCP law makes only two explicit and two implied references to the vapor intrusion issue. In setting forth a “hierarchy of source removal and control measures,” Section 27-1415.5(c) specifies that “elimination of exposure”—including “the elimination of volatilization into buildings… to the greatest extent feasible”[2]—should be employed “to any source remaining following removal, treatment and/or containment ….” At each level of the hierarchy, source removal and control measures must be carried out to “the greatest extent feasible.” “Treatment of [the] source at the point of exposure”—including, as applicable, “the management of volatile contamination within buildings,” is to be “considered as a measure of last resort.” § 27-1415.5(d). The implicit references are in Section 27-1415, dealing with “remedial program requirements.” Section 27-1415.1 requires all remedies to be “protective of public health and the environment including but not limited to… air (including indoor air)….” Section 27-1415.2(a) goes on to specify that the remedial investigation must “fully characterize the nature and extent of contamination at and/or emanating from a brownfield site”—including “assessment of the existing and potential impact of groundwater contamination on… indoor air quality.” The applicant is free to select the remedy after developing and evaluating “at least two remedial alternatives” (for all restricted-use cleanups) as part of a DEC-approved alternatives analysis (§§ 27-1411.1(c), 27-1413)—except that, for sites that DEC has determined constitute a “significant threat,” DEC is to select the remedy from the approved alternatives analysis. Fourth, in selecting the remedial program for a brownfield site, the applicant is required to conform to applicable (or relevant and appropriate) standards, criteria and guidance (SCGs), unless “good cause” exists why “conformity should be dispensed with.” § 27-1415.3(a). One of the “good cause” factors is if “conformity… is technically impracticable from an engineering perspective.” Among the general factors to be considered in remedy selection are “implementability” and “cost effectiveness.” Another, as noted above, is “[t]he current, intended, and reasonably anticipated future land uses of the site and its surroundings….” §§ 27-1415.3(g),(i). And another is “[p]otential vulnerability of groundwater to contamination that might migrate from the site ….” § 27-1415.3(v). Fifth, the law also authorizes the DEC commissioner to develop a list of presumptive remedial strategies “for specific site types and/or contaminants based upon historical patterns of remedy selection and the department’s scientific and engineering evaluation of performance data on technology implementation.” § 27-1415.8. And the DEC commissioner, in consultation with the commissioner of health, is directed to “consider and encourage the use of innovative technologies which will meet the remedial objectives of this title.” The commissioner is also directed, in consultation with the president of the environmental facilities corporation, to “encourage the development of such technologies.” § 27-1415.9. Sixth, further recognizing the distinction between responsible parties (“participants”) and cleanup volunteers, while both volunteers and participants must fully characterize site contamination and prevent the further migration of contamination from the site to the extent feasible, only participants are obliged to “fully investigate and characterize the nature and extent of contamination emanating from” a brownfield site (§§ 27-1411.1, .1(a)) and to prevent, to the extent feasible, the further migration of groundwater plumes. § 27-1415.5(b). For sites being addressed by volunteers, where off-site groundwater contamination emanates from the site, DEC “is responsible” for remediation—at least where the site has been determined (§ 27-1411.1(d)) to be a “significant threat.” § 15-3109.3. While participants are required to remedy both on- and offsite contamination, volunteers are obliged to remedy only on-site sources—although they must exercise “appropriate care” to stop any continuing releases, prevent any threatened future releases, and prevent or limit exposure to any previously released hazardous substances (§ 27-1405.1(b)). At BCP sites addressed by volunteers, if the site poses a significant threat, DEC is required to pursue enforcement against any known or suspected responsible parties. If such action cannot be brought or is not successful, DEC must use “best efforts to begin a remedial program to perform the remediation of off-site contamination at such site within one year of the completion of such enforcement action or the completion of the volunteer’s remedial program, whichever is later.” § 27-1411.6. In addition, volunteers can receive a liability release for natural resource damages, but participants/responsible parties cannot. § 27-1421.1. Seventh, brownfield Certificates of Completion and liability releases are subject to six “re-openers” or “reservation of rights” under Section 27-1421.2(a)—including “environmental contamination at, on, under, or migrating from the brownfield site if, in light of such conditions, the site is no longer protective of public health or the environment” (“public health” re-opener); and “a finding by the department that a change in an environmental standard, factor, or criteri[on] upon which the remedial work plan… was based, which renders the brownfield site remedial program implemented at the site no longer protective of public health or the environment” (“changed standards” reopener). It should be noted that, while the “public health” reopener is a carryover from the previous, extra-statutory Voluntary Cleanup Program (VCP), liability releases under the VCP did not typically contain a “changed standards” reopener.[3] Eighth, municipally-owned brownfield sites that are remediated under the Environmental Restoration Program (created under the 1996 Clean Water/Clean Air Bond Act), not only receive a liability release, but are indemnified and held harmless by the State against third-party claims. Moreover, ERP cleanups are not subject to “public health” or “changed standards” reopeners. See ECL § 56-509, as amended by Part D of the BCP law. And, finally, recognizing that financial incentives are necessary to attract redevelopers and other investors to most brownfield sites and to accomplish the substantial environmental and economic benefits of cleaning up and revitalizing the State’s tens of thousands of brownfield sites, the Legislature wisely established a series of brownfield tax credits to encourage voluntary cleanups. BCP law, Part H. Such credits are available only for eligible expenditures at sites that receive Certificates of Completion (“remediation certificates”) from DEC and only for “the taxable year in which the effective date of the remediation certificate occurs.” (In certain cases, such as the credit for on-site groundwater remediation costs, credits may be allowed—in the taxable year such qualified costs are incurred and paid—for up to five taxable years after issuance of the Certificate of Completion.) Can New Vapor Intrusion Policies be Applied to Brownfield Sites without Crippling the BCP? DEC has a draft Vapor Intrusion Policy and DOH has draft Vapor Intrusion Guidance out for public comment (the comment deadline on the DOH guidance has just been extended until May 31^st; the comment deadline on the DEC Policy was previously extended until April 23^rd). While vapor intrusion is an important issue that can only benefit from clearer policies and guidance, I am very concerned that unduly complex evaluation requirements and, especially, unduly stringent cleanup endpoints that are not directly tied to harmful exposures, could have a devastating impact on the new Brownfield Cleanup Program, just as it is beginning to pick up momentum. This would amount to “throwing the baby out with the bathwater” and would be most unfortunate. My comments to DEC on its draft Vapor Intrusion Policy are attached as *Exhibit II. An article by Jesse Hiney and myself, published by the Bureau of National Affairs, which addresses the issues posed by the draft Policy more extensively, is attached as Exhibit III.* Public and political sentiment on vapor intrusion has come full circle. Just a few short years ago, vapor intrusion did not receive the attention it deserved and the potential for chlorinated solvents in soils and groundwater to enter building structures and contaminate indoor air was underestimated.[4] It is appropriate and important that this imbalance should be rectified and that vapor intrusion should receive the attention that it is due. I fear, however, that we are now overcompensating and that the media frenzy directed at this issue could lead to some very poor public policy—one of the major casualties of which could be New York’s promising new brownfields program. Here are some examples of the “reverse auction” mentality at work as New York State communities “bid” for lower and lower vapor intrusion limits: November 23, 2005 article (Binghamton Press & Sun-Bulletin: “Pollution standards at issue: differences between Endicott, Hillcrest examined”)—Hillcrest residents complain that properties in Endicott received ventilation systems (paid for by IBM) when indoor air levels of TCE were as low as 0.18 ug/m³, whereas the standard applied in Hillcrest (where ventilation systems are being paid for by the state) was 5 ug/ m³. February 8, 2005 article (Binghamton Press & Sun-Bulletin, “TCE standard stricter downstate: Tier residents upset”)—“Stricter guidelines are being applied to protect residents from exposure to underground pollution in East Fishkill [U.S. EPA acceptable exposure limit of 0.38 ug/ m³ in indoor air—at or near the limits of detection] than in Endicott or Hillcrest, and members of the Southern Tier communities are unhappy about it.” The East Fishkill cleanup is being overseen by U.S. EPA. The Endicott and Hillcrest cleanups are being overseen by State DOH and State DEC. February 9, 2005 article (Binghamton Press & Sun-Bulletin editorial, “Tracking TCE; pollution standards should be standardized”)—“To allow more than 10 times the exposure for Broome residents [than for residents of East Fishkill] is frightening, especially when dealing with the unknown carcinogenic consequences of that added amount.” “TCE pollution is not a new concern—it’s been a problem for years. It’s time the state and national governments concur on a universal standard for exposure limits.” February 12, 2005 article (Binghamton Press & Sun-Bulletin, “NY: TCE standards are too lax: State is inconsistent at Huron, IBM says”)—“In Endicott, the state Department of Health is allowing no more than 5 micrograms of TCE per cubic meter of air to enter homes and nearby buildings—100,000 times less than the OSHA limit [which balances worker safety with economic feasibility].” DOH is applying the 5 ug/m³ statewide guideline to IBM at the Huron campus. February 20, 2005 article (Poughkeepsie Journal, “Cleanup guidelines lag: health-risk assessment under review”)—“If the EPA had set regulations based on its draft health analysis [issued in 2001], it would have put the national cleanup guidelines between 0.017 to 1.7 micrograms of TCE per cubic liter of air. The EPA can detect TCE at levels of 0.38 and higher.” “In East Fishkill, the EPA has committed to removing all TCE vapors it can detect in the Hopewell Precision neighborhood, where groundwater is polluted with TCE…. In the same town, a few miles to the south, the EPA could permit TCE vapors to remain in homes in the Shenandoah neighborhood, as long as they don’t exceed New York’s guideline of 5 micrograms per cubic liter—about 13 times higher than the smallest detectable concentrations.” While protection of public health and the environment must be a foremost concern, other significant interests and implications must also be considered—especially in the context of brownfields redevelopment, where the burden of environmental investigation and cleanup falls primarily on “volunteers” who neither caused nor contributed to contamination of the sites they are seeking to redevelop. Although the focus of the public debate in Endicott, Hillcrest, and East Fishkill has been the threshold at which venting systems must be installed in residential buildings, the potential cost to brownfield cleanup volunteers is far higher than the costs of such relatively inexpensive mitigation systems. Also, to the extent these incremental costs go beyond what is necessary to limit human exposures to toxic vapors in indoor air, they have the potential to negatively and unfairly impact innocent cleanup volunteers at new and old brownfield sites out of all proportion to resulting public health and environmental benefits. Specifically, while DOH has focused on mitigation and monitoring, DEC’s focus under its proposed Vapor Intrusion Policy, is on the removal or treatment of VOCs in soil and groundwater that might (or might not) have the potential to get into structures and contaminate indoor air. The costs of characterizing and controlling VOC source areas, as DEC has proposed to require, are orders of magnitude greater than the costs of mitigation systems. It is one thing to impose these costs on the Responsible Parties who caused this contamination. It is quite another to impose these costs on innocent cleanup volunteers at brownfield sites. The potential disruptive effect of the draft DEC Policy is compounded by the fact that the primary initial focus of the new Policy is on so-called “legacy” sites where required cleanups were approved prior to 2003. Innocent brownfield cleanup volunteers will be required under this Policy to do more than simply evaluate vapor intrusion as a new potential exposure pathway going forward at new sites—where at least they know in advance what they are up against. (At least, at a new site, a prospective purchaser or redeveloper has the opportunity to assess whether a potential vapor intrusion problem exists and how much it may cost to address it—and, if the costs exceed the potential return on investment, the opportunity to walk away.) DEC is proposing to go much further and is asking those who gratuitously (i.e., without any legal liability or obligation) invested in the cleanup and redevelopment of brownfield sites in the past and received DEC’s “blessing” (in the form of a Certificate of Completion and liability release) and moved on to other endeavors, to revisit many of these sites and to pour additional large sums of money into sampling and testing them for VOCs and vapor intrusion at a cost that may far exceed their return on investment for the project (and, as noted above, may be out of all proportion to the resulting public health benefits). What impact is this likely to have on the willingness of prospective brownfield redevelopers and investors to take a chance on a brownfield site? Uncertain potential health effects of VOCs in soils and groundwater at brownfield sites—which may or may not result in toxic vapor exposures to occupants of potentially affected structures—must be weighed against the certainty of deterring volunteers from investing in the cleanup and redevelopment of such sites. Prospective purchasers or redevelopers will be less inclined to invest in a site that requires costly soil or groundwater remediation (or soil vapor management), with the result that more blighted properties will continue to depress the economy and contaminate the landscape. This is especially true in Upstate New York’s hard-hit urban centers, where real estate values are too low (even when supplemented with tax credits and other incentives) to support significant cleanup costs and liability exposures. It follows that, especially in the brownfields context, the “rules” governing the control of vapor intrusion need to be both clear and flexible, with an emphasis on results and exposure potential (i.e., interrupting the vapor intrusion exposure pathway, so that harmful vapors are unable to reach sensitive receptors), rather than on rigid concentration-based limits or complex evaluation procedures. In other words, the approach should be “performance-based,” rather than relying on inflexible “command-and-control” methodologies or standards. An emphasis on results and impacts rather than on methodologies or standards will also help promote the Brownfield Law’s directive (ECL, Title 14, § 27-1415.9) that DEC “consider and encourage the use of innovative technologies” that can achieve the health and environmental protection objectives of Title 14—in this case, to interrupt—by conventional or unconventional means—the vapor intrusion exposure pathway. While the focus of brownfield cleanups is and ought to be protection of public health and the environment, rigid insistence( in the brownfields context) on removal of VOC “sources” so that residuals do not exceed an arbitrary numerical threshold or an incremental lifetime cancer risk level of 1 in a million, is often not justifiable and may be counter-productive. Conclusions and Recommendations It would be unfortunate and counter-productive if commendable efforts to protect the public against health-threatening Vapor Intrusion that contaminates the indoor air of homes were allowed to mutate into a wide-ranging and costly “witch hunt” for VOC-contaminated sites that have a far more tenuous public health link. It would be especially unfortunate and counter-productive if a fall-out of such efforts was the crippling of the State’s equally commendable Brownfield Cleanup Program. Fortunately, protecting public health from the ravages of uncontrolled Vapor Intrusion and preserving the momentum and efficacy of the State’s brownfields revitalization efforts are not, and need not be, mutually exclusive. My conclusions and recommendations on how to strike the correct public policy balance can be summarized as follows: 1. The State, in its praiseworthy efforts to address Vapor Intrusion-related public health threats, should endeavor to avoid disrupting the Brownfield Cleanup Program’s socially beneficial encouragement of voluntary brownfield cleanups. 2. Brownfield cleanup volunteers at sites with no “current, intended or reasonably anticipated” residential use should not be required to investigate or remediate vapor intrusion precursors beyond what is reasonably necessary to protect public health or the environment. 3. Where “source” removal or treatment of potential vapor intrusion precursors at a brownfield site is not feasible, the focus of remediation efforts should be on elimination of exposure—which will generally be the best way to achieve maximum health protection benefits without imposing crushing costs on innocent cleanup volunteers. 4. Where brownfield cleanups completed prior to the advent of the BCP law are revisited at the behest of DEC or DOH to investigate the presence of vapor intrusion precursors and the potential for health-threatening indoor air contamination, the costs of desired follow-up investigations and/or remediation should be borne by Responsible Parties or the State (similar to the handling of costs for offsite migration of contaminants, and any Natural Resource Damages, under the BCP). It would be unfair and legally suspect to retroactively impose these costs on brownfield cleanup volunteers who previously completed their VCP obligations in good faith to the satisfaction of DEC and DOH. 5. Even where a potential vapor intrusion pathway is being addressed prospectively at a new BCP site—where cleanup volunteers at least have the ability to evaluate the facts and make a business judgment on whether to move forward with redevelopment efforts—the State should take care not to “punish the innocent” (particularly at low-value Upstate sites) by imposing Superfund-caliber investigation and remediation requirements (and costs) on brownfield volunteers. 6. DEC and DOH should give high priority to identifying and encouraging the use of innovative technologies to address the vapor intrusion exposure pathway, as well as to developing a list of “presumptive remedies” for recurring situations where vapor intrusion is a plausible concern. Anything that reduces time delays and other transaction costs, and promotes efficiency and cost-effectiveness, should be explored and aggressively pursued. 7. Brownfield certificates of completion should not lightly be re-opened at brownfield sites (whether new or old, private or municipal) to address belatedly recognized vapor intrusion precursors or other VI concerns. Cleanups of municipally-owned brownfields are not subject to re-openers under the ERP—and even if they were, new VI-related requirements would be covered by the statutory State indemnification. For privately owned sites, the “public health” re-opener (under both the VCP and the BCP) is a questionable basis for mandating further measures (at the volunteer’s expense) to determine whether a previously unrecognized public health threat exists. Even the “changed standards” re-opener (under the BCP and a minority of VCP sites) is a dubious hook to hang site-screening studies (under DEC policy or DOH guidance) designed to assess if regulatory thresholds might be exceeded. Finally, brownfield certificates of completion should especially not be re-opened at BCP sites where it is unclear that post-COC expenditures by the cleanup volunteer will be eligible for brownfield tax credits. 8. The State should not impose on private parties more expansive and stringent mitigation or cleanup requirements at Vapor Intrusion sites than it is prepared to assume itself at sites for which the State has responsibility. Regardless of who pays the bill, funds that are spent beyond what is reasonably necessary to protect public health and environment, are funds that are unavailable to further other important environmental and economic development objectives. There is no “free lunch.” 9. The incremental cancer risk threshold of one-in-a-million set forth in the BCP law is tantamount to a zero-risk standard, which ordinary people do not practice in their daily lives—or they would never cross the street or travel in an airplane. Vapor Intrusion policies, guidelines, and standards should not seek to meet this unrealistic and exorbitantly costly threshold—especially when applied to innocent brownfield cleanup volunteers. As allowed and contemplated in the BCP law, a less onerous standard should be acceptable on a site-specific basis as long as it can be shown to protect public health and the environment. DOH and DEC should not succumb to “reverse auction” public pressure to enforce everywhere the lowest (most stringent) indoor air standards applied anywhere. 10. DOH’s emphasis on monitoring [subject to the caveat below] and mitigation to address Vapor Intrusion public health concerns should be emulated by DEC and given preference and priority—especially at brownfield sites—over dramatically more costly source removal and treatment approaches—except where significant incremental public health and environmental benefits can be shown to result. (However, DOH should strive for a more flexible tiered or phased approach that does not require exhaustive sub-slab, indoor, and outdoor testing—at levels of detail and documentation that resemble research projects—virtually anywhere in the State where a building exists over soil or groundwater with any detectable levels of VOCs.) Protecting our citizenry from health-threatening vapor intrusion at dozens or hundreds of New York State sites and promoting volunteerism at the State’s tens of thousands of brownfield sites are not mutually exclusive. The State needs and deserves vigorous and effective programs in both areas. Let us not throw the baby out with the bath water. [1] The concept of a one-in-a-million risk of developing cancer as a definition of acceptable risk has a murky origin and a debatable technical validity. According to at least one author (Kathryn E. Kelly, Dr.P.H., “The Myth of 10^-6 as a Definition of Acceptable Risk,” http://deltatoxicology.com/pdf/10-6.pdf ), this risk threshold originated as “a completely arbitrary figure adopted by the FDA as an ‘essentially zero’ level of risk for residues of animal drugs… [which] was specifically not intended to be used as a definition of acceptable risk ….” Not only do other states and the federal government use a much higher acceptable risk threshold, but Massachusetts DEP characterizes its cancer risk limit of 10^-4 (one in 10,000)—which is 100 times less stringent than New York’s—as “very strict” based on the fact that, in the United States, “the risk of an individual developing cancer is 1 in 4” (i.e., 2.5 x 10^-1). Maintaining “the most stringent environmental and public health standards in the nation,” as New York State has boasted that it does (see, e.g., Governor Pataki Press Release of April 18, 2001), while seemingly a commendable objective, has definite costs. Not only does it greatly increase environmental compliance costs in New York State—with dubious benefits against the backdrop of an overall 1-in-4 lifetime cancer risk of the average American—but it serves to make voluntary cleanups less attractive. Also, by adopting more stringent standards than those of neighboring states, New York places itself at a competitive disadvantage in attracting economic development. [2] “Feasible” is defined to mean “suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective.” § 27-1405.12. [3] Re-openers under the old VCP are relevant to the vapor intrusion issue from the standpoint of DEC’s announced plans to revisit pre-2003 “legacy” sites, including completed brownfield sites, to determine whether further investigation and/or remediation of vapor intrusion is necessary. Since the law creating the BCP program was enacted in 2003, all pre-2003 sites that did not subsequently “transition” into the BCP are subject to cleanup agreements under the VCP. [4] Vapor intrusion is a widespread concern and it needs to be addressed. It first emerged as an environmental issue in the early 1980s in Silicon Valley, CA. Today, at least 852 of the nearly 1,500 federal Superfund sites have identified the most common volatile organic compound (VOC)—trichloroethylene (TCE)—as a contaminant of concern. VOCs and vapor intrusion are also issues at many other sites, including State Superfund and Brownfield sites. Vapor intrusion as a potential human exposure pathway clearly needs to be considered in the investigation and cleanup of contaminated sites. This includes the development of guidance and regulations in the implementation of New York State’s new Brownfield Cleanup Program legislation.