Notes from the meeting held on

Wednesday, November 14, 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, and ________ Guest Experts: Joe Moody (Town of Union), Susan Cummins, Tom Suozzo (DEC), Greg Lesniak, Doug Garner, Mary Brophy AWE: Dee Golazeski, Joel Boyd, and ________.

1. The meeting convened at 4:30 p.m. On a motion from Chip McElwee, seconded by Ron Brink, the minutes from the last meeting (10/17/01) were approved subject to one correction and one clarification request by Ken Kamlet.

2. Member Items of Interest

(a) Stacy reminded the group of the upcoming Brownfields seminar to be held in Utica on Dec. 5^th. She indicated that she may well attend herself, but invited members of the group to also participate (with EMC picking up the registration fee). Susan Cummins said she will consider attending. (Ken indicated that, but for two overlapping hearings he needs to attend in Pennsylvania that evening, he would be very interested in attending.)

(b) Stacy distributed pledge cards for “America Recycles Day.”

(c) Ken informed the group that the Small Business Council Legislative Committee (on which he also serves) of the Broome Chamber is planning to include some Brownfields questions in its 2002 Legislative Survey. This is the first time the Survey and resulting Legislative Agenda will address Brownfields-related issues. The Survey will ask Chamber members to assess the degree of importance to them of: restoring expired funding for cleanup of contaminated sites; relaxing cleanup standards where risks are low to encourage voluntary cleanups; providing incentives to encourage reuse and redevelopment of brownfields; and enhancing the immunity of local governments where they acquire brownfield properties to promote their redevelopment.

(d) Chip McElwee reported on a conversation he had with Mike Haas (a Binghamton landscaper involved with the City’s riverfront park initiative). The latter wants to do a park behind Binghamton Plaza. Chip encouraged Frank Evangelisti, in preparing Broome County’s BADP grant proposal to U.S. EPA, to include this park and/or the area of the coal gasification plant at the confluence of the Susquehanna and Chenango Rivers in the supplemental Greenspace grant submittal. Frank and Stacy indicated they would do so.

4. EPA Brownfields Assessment Demonstration Pilot.

Frank Evangelisti updated the group on the status of the grant preparation activity. He indicated that things were coming along well. He showed the group a map he had prepared, depicting the location of County brownfield sites—each surrounded by a circle signifying the zone of influence of each site in depressing surrounding property values (due, presumably, to the stigma of perceived contamination). This was based on a 2001 EPA-funded study by Professors Keith R. Ihlanfeldt of Florida State University and Laura O. Taylor of Georgia State University.

Frank also briefly described the results of a demographic analysis indicating that property assessments in many County jurisdictions have declined significantly (e.g., Town of Union assessments were down 29%). Statistics of this kind incorporated into the County’s grant proposal will help demonstrate to EPA that Broome County is in a position to benefit substantially from Federal funding to enhance its brownfields revitalization efforts.

Frank indicated that shortly before the meeting he had touched based with a representative of EPA Region 2’s Brownfields Program, Chelsea Albucker who seemed anxious to be of assistance. In response to a question about what to say in the Proposal about criteria for measuring the success of a Pilot Program assessment grant, Ms. Albucker indicated that we could simply use an EPA-devised “template” which includes 20 variables for measuring the results of brownfields-related efforts. She also reiterated that it was not necessary for us to specifically identify the site or sites we would work on if awarded an EPA grant—as long as it was clear that we had identified a number of sites and that we had a specific rationale for choosing the sites to work on in the project. Several members of the group indicated their willingness to assist Frank in finalizing the County’s proposal (due December 10) in the firm of an ad hoc “Review Group” subject to Frank’s call. It was emphasized that the participants in this effort would not in any way be second-guessing Frank as the primary architect of the Proposal, but would merely be lending their assistance where deemed appropriate by Frank.

4. Presentation on New York’s Voluntary Cleanup Program

Susan Cummins of GeoLogic led a discussion of the pros and cons of New York State’s Voluntary Cleanup Program. She provided the following handouts: (a) a summary of the “New York State Voluntary Cleanup Program, including the eligibility of particular properties and individuals to participate in the program (individuals are not eligible if they caused or contributed to the contamination of a Class 1 or 2 property on the New York State Registry of Inactive Hazardous Waste Disposal Sites; properties are not eligible where the Federal Government has assumed lead cleanup responsibility, if they are hazardous waste disposal sites subject to the Resource Conservation and Recovery Act [RCRA], or if they are subject of Federal or State cleanup enforcement actions.) This handout also summarized the nature and scope of the “Liability Release” available from DEC upon completion of the agreed-upon cleanup; the reopeners to which Voluntary Cleanup Agreements and Liability Releases are subject; “Initial Principles of the VCP”; “VCP Negotiation Characteristics (in theory)”; and “Potential Risk Factors with the Initial NYS VCP.”

Susan also handed out (b) Chapter 4 and Appendix C from DEC’s NYS Inactive Hazardous Waste Disposal Site Remediation Plan, which indicates, for example, that through FY 1999-2000, volunteers had completed 18 site investigations and 45 remediations. Nine Voluntary Cleanup Agreements had been executed in Broome County on or before March 31, 2000 (4 in Binghamton, 1 each in Chenango, Endicott, Fenton, and Vestal).

She also handed out (c) copies of DEC’s 2-page Voluntary Cleanup Program Application (rev. 11/00) and barely more than 1 page “Application Instructions.” Susan noted that very little information or guidance is provided in the application materials.

Among the significant points to emerge during the discussion were the following:

(i) In theory, the legal agreement (VCA) and the technical Work Plan are to be processed together, leading relatively expeditiously to an agreed-upon plan of action acceptable to DEC. In practice, the State (DEC and DOH) often add more and more requirements to the Work Plan, as initial results become available.

(ii) “Hazardous substance” sites are not currently within the scope of DEC’s cleanup authority. If legislation supported by the Governor is adopted and these sites are included, sites like the Endicott Shopping Center (which could not be put on the DEC Registry because it lacked §371 “hazardous wastes”) could be listed and would be addressed more frequently under the VCP.

(iii) The Voluntary Cleanup Program has few directions now. It is easier for a cleanup volunteer to enter into a binding contract with DEC than it is for it to obtain a useful Liability Release. It is difficult to play “the game” because “there are no rules and the rules change.” Even where a liability release is obtained from DEC, DEC is not releasing the State of New York; it is only providing a release for itself. To obtain a release from all New York State liability, it would be necessary to get the signature of the State’s Attorney General. Also, since New York State has not entered into a Memorandum of Agreement (MOA) with U.S. EPA, a cleanup volunteer who obtains a release from DEC or the State has no assurance that U.S. EPA won’t come after it later—although as a practical matter this risk is probably low. [Editor’s Note: Under Federal legislation enacted early this year, US EPA is essentially precluded from second-guessing a cleanup agreement entered into by a State.]

(iv) The enforceability by the State of a Voluntary Cleanup Agreement against subsequent purchasers or developers (who did not sign the original Agreement) is questionable. The only incentives a subsequent owner may have to honor the terms of the Agreement are if an outside lender requires a sign-off from DEC, and/or if absent the Agreement, the site is realistically eligible for listing on the State Registry. Otherwise, a subsequent owner is basically free to do what it wants with the site without fear of governmental compulsion.

(v) The “front-end tragedy”: The perception of contamination and liability is often worse than the reality. If more sites could be assessed with less fear of punitive governmental action if contamination is found to be present, many more sites would be cleaned up and redeveloped. Also, if greater upfront certainty could be provided through objective cleanup criteria—rather than requirements developed ad hoc as the process proceeds—more owners, developers, and prospective purchasers would be willing to go through the Voluntary Cleanup Program.

A few minutes were spent discussing the Voluntary Cleanup Agreement at Chenango Plaza (the location of the new Lowe’s Home Improvement Warehouse [Lowe’s]). FGR Realty, before it purchased Chenango Plaza, entered into a VCA with the State to address dry cleaning solvents that had accumulated at the site when the site discharged its sanitary and process wastes to a septic field behind the shopping center. To address the pre-existing problem, FGR first required the cleaning store tenant to discontinue dry cleaning operations. It then removed accessible tanks and piping associated with the former septic system, as well as contaminated soils, and installed monitoring wells and a Soil Vapor Extraction (SVE) system. After Lowe’s agreed to acquire a large portion of the property and the old shopping center building was dismantled and removed, additional soil and septic system components were removed. Finally, when the new Lowe’s building was constructed (less than 8% of the building area overlapped with the former septic field), a vapor barrier was installed beneath the foundation (there is no basement) and an active SVE system was installed to allow any remaining dry cleaning solvents in the subsoil and groundwater to vent to the atmosphere (and not accumulate in the building). The cleanup volunteer in this situation (FGR) has been required repeatedly to implement measures well beyond the agreed-upon terms of the original VCA. And although the VCA contemplated a risk-based cleanup commensurate with the COMMERCIAL end use of the property, the State has recently been attempting to require abatement of the levels of one dry cleaning solvent (tetrachloroethylene) at the outlet to the ROOFTOP vent from the SVE system to guidance levels established to protect the INDOOR air quality of RESIDENTIAL buildings. This approach, which places a far higher cleanup burden on the innocent purchaser of a property for contamination which it neither caused nor contributed to, than the State ever sought to impose on the responsible dry cleaning establishment which contributed high levels of contamination to the environment on an ongoing basis, is clearly counter-productive. It is this kind of behavior by the State that will discourage landowners and developers from getting involved in the Voluntary Cleanup Program and seeking to clean up and revitalize previously used industrial and commercial properties.

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

Recorder, Ken Kamlet

11/19/01

Editor, Joanna Corey