October 2006 Alert
SPRINGBOARD - Legal Trends & Analysis
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DEC Adopts Brownfields Regulations

The State of New York Department of Environmental Conservation ("DEC") has adopted the long awaited overhaul to its Part 375 Hazardous Waste Remediation Regulations including, most significantly, its first ever Brownfields Cleanup Program Regulations. These final Part 375 Regulations are substantially the same as the draft regulations issued this past summer with one significant omission-they do not incorporate the hoped-for informal voluntary cleanup program that would have served as an alternative to the BCP for sites that might not readily qualify as "Brownfields".

The new Part 375 Hazardous Waste Regulations reflect the DEC's goal of harmonizing the terminology, investigation and remedy selection methodology and cleanup standards under its Hazardous Waste Cleanup Program, Brownfields Cleanup Program and Environmental Restoration Program. These regulations add new Brownfields Cleanup Program eligibility requirements, procedural requirements for Site investigation and remediation, significant new complexities for cleanup standards, and when finalized, will establish "how clean is clean" at virtually every soil remediation Site in New York.

The Brownfields Regulations give DEC broad authority to reject a Brownfield Cleanup Program application, even if real property meets the statutory and regulatory definition of "brownfield site", if the DEC determines that the "public interest would not be served by granting such request". In making this determination, the DEC will "not [be] limited to" the statutory criteria set forth in ECL 27-1407.8, but can presumably use criteria such as the relative financial benefit to the developer or relative burden on the tax resources of the State. The regulations also include a new definition of "historic fill material", and the benefits (or lack thereof) of also be presumably taken into the "public interest" consideration.

In terms of procedural requirements, these new regulations now make official much of the "guidance" that was previously found in the DER-10 Manual for Investigating and Remediating a Hazardous Substance Site, and may remove some of the flexibility previously given in the means and methods of preparing work plans and reports. The DEC, under the new regulations, also will be preparing a list of "presumptive remedies" the implementation of which at a Site may, in certain circumstances, reduce some of the procedural burdens the new regulations otherwise impose. When an engineering or institutional control is being used a part of a remedy-presumptive or otherwise-the regulations now give the DEC the right to require the remedial party to post "financial assurance" to contain, mitigate, and remediate any impact resulting from a failure of such institutional or engineering controls. This financial assurance may take several forms-including, for the first time, environmental insurance products-but requires the remedial party to employ services such as those provided by an independent insurance professional to certify that such a policy will meet the State's requirements.

The regulations also promulgate New York's first-ever official soil cleanup standards. These standards are "use based" and range widely depending on whether the cleanup proposed for a Site is intended to accommodate a "Track 1" Unrestricted Use (i.e. a use that does not rely on any long-term institutional or engineering controls as part of the selected remedy) or a "Track 2" Restricted Residential Use, Restricted Commercial Use or Restricted Industrial Use. Even the Restricted Use standards vary widely if ecological resources or groundwater have been impacted by on-Site sources, and are not being addressed through engineering controls such as groundwater treatment systems.

Importantly, the new soil cleanup standards are, in some instances, less restrictive then the "TAGM" standards that have long been used by DEC as the benchmark for "how clean is clean" in New York. However, whether a certain standard applies to a particular Site or use now involves a complex analysis of zoning and land use in addition to geology, hydrology, ecology and the remedial measures being implemented. But properly packaged, these standards may provide owners or potential buyers of Brownfield or other hazardous substance program Sites new certainty in establishing Site specific cleanup goals.

In recognition of the new emphasis on vapor intrusion, the new regulations define "indoor air" as part of the environment, and contaminants released into homes, buildings and other structures will now be expressly governed by the State's hazardous substance programs. The new cleanup standards also reflect the State's emphasis on indoor air: the cleanup standards for Volatile Organic Compounds (VOCs) have been strengthened-in some cases very substantially-for Unrestricted Use cleanups. At the same time, following the 2003 Brownfield Cleanup Act's focus on "use based" cleanups, the new draft cleanup standards for VOCs are in many instances less stringent for restricted uses-especially for commercial and industrial uses.

 

DEC and DOH Issue Final Guidance Documents Addressing Soil Vapor Intrusion

The New York State Department of Health ("DOH") and the New York State Department of Environmental Conservation ("DEC") have both recently issued final guidance documents concerning soil vapor intrusion. While labeled agency "guidance" and thus not having the force of a promulgated regulation, these new initiatives are likely to have broad implications for parties who have or are cleaning up and/or developing hazardous waste sites.

This State-wide initiative is likely to affect virtually all properties at which volatile organic compounds are present, including, but not limited to, site contaminated with petroleum, solvents, or manufactured gas plant residues or byproducts. Moreover, it applies to sites in all of DEC's remedial programs (the Brownfield or Voluntary Cleanup Program, the Spills Program and the State Superfund Program), and allows DEC to reexamine sites at which remediation has already been completed and reopen previously agreed-upon remediation. Accordingly, it will have a significant impact on both the investigation and remediation of innumerable sites throughout the State.

Our March 2005 update described the overall implications of the promulgation of such guidance documents. This update focuses on the changes between the draft and final versions of these guidance documents.

DOH GUIDANCE

DOH's Guidance for Evaluating Soil Vapor Intrusion in the State of New York (October 2006) is available here ("Final Guidance"). Appendix A to the Final DOH Guidance summarized the revisions to the draft contained therein. The most significant revisions were made to the decision matrices that identify what, if any, additional investigation measures must be taken, depending on the levels of the contaminants identified, and the mitigation or remediation measures that must be employed when such contamination is detected. Matrix 1 in the draft Guidance was developed to assist in the evaluation of tricholorethene ("TCE") contamination, while Matrix 2 addressed tetrachloroethene ("PCE"). The Final Guidance now designates Matrix 1 for the analysis of both TCE and carbon tetrachloride contamination and Matrix 2 for both PCE and 1,1,1-trichloroethane. Not only has the scope of the matrices changed, but the recommendations and thresholds set forth therein have been revised as well. These changes are summarized below.

Matrix 1

Both Matrices are structured to compare the concentration of the relevant contaminant in sub-slab and indoor air in order to determine the appropriate action to be taken. The draft of Matrix 1 set forth four levels of indoor air concentrations (in mcg/m3): < 0.25; 0.25 to < 2.5; 2.5 to < 5.0; and 5.0 and above. The final Matrix 1 has decreased the 2.5 boundary to 1.0. In addition, the recommended actions have changed. While Matrix 1 now suggests "reasonable and practical" actions to identify source(s) and reduce exposure when sub-slab concentrations are less than mcg/m3, the Final Guidance notes that "resampling may be recommended to demonstrate the effectiveness of actions taken to reduce exposures". While the option to determine whether to monitor or mitigate based on site-specific circumstances is now the recommended in situations in which sub-slab concentrations range from 50 to < 250 mcg/m3 and indoor air concentrations range from 0.25 to < 1 mcg/m3, mitigation is now required in all situations in which sub-slab concentrations exceed 250 mcg/m3.

Matrix 2

As with Matrix 1, the final Matrix 2 now notes that "resampling may be recommended to demonstrate the effectiveness of actions taken to reduce exposures". In addition, it no longer requires any actions beyond taking "reasonable and practical" actions to identify source(s) and reduce exposure when sub-slab concentrations are less than 100 mcg/m3. However, when sub-slab concentrations range between 100 to <1000 mcg/m3 and indoor air concentrations range from 3 to < 30 mcg/m3, mitigation or monitoring may be required, based upon site-specific considerations.

DEC GUIDANCE

DEC's Strategy for Evaluating Soil Vapor Intrusion at Remedial Sites in New York (DER-13) is available here. The most significant change between the draft and final versions is that DER-13 no longer screens out sites more than 100 feet from an occupied structure from further investigation. The Department has determined that "At this point in time, there is not sufficient evidence to support setting such a criterion." Accordingly, a soil vapor investigation may be required at any site, regardless of its proximity to an occupied structure.

For more information on these guidance documents and soil vapor intrusion issues, please contact SPR at (212) 421-2150.

 
phone: 212-421-2150