DEC Issues New Policies On the Cleanup of Contaminated Sites

DEC Issues New Policies On the Cleanup of Contaminated Sites

Over the last year, the Department of Environmental Conservation(DEC) has issued several important policy documents relating to the cleanup of contaminated sites in New York. Each is intended to provide the DEC staff and private parties with clear guidance on that policy’s goals, purpose, standards and detailed procedures for achieving such goals. By and large these new policies apply to the six DEC cleanup programs, administered by the DEC’s Division of Environmental Remediation (DER): the Inactive Hazardous Waste Disposal Site Remedial Program, known as the State Superfund Program (SSF); the Brownfield Cleanup Program (BCP), the Petroleum Spill Response Program (SRP), the Environmental Restoration Program, the Voluntary Cleanup Program and the Resource Conservation and Recovery Act Corrective Action Program (RCRA).

This article provides a concise summary of three of these important policy documents.

DER- 10: Technical Guidance for Site Investigation and Remediation.

This guidance document, known as DER-10, was issued in May 2010. This voluminous document (over 225 pages), was designed to help parties and their consultants in developing and implementing investigation and remediation projects at contaminated sites. DER-10 declares that it “is a separate document of the requirements for a remedial program set forth in statute and regulation, as well as in guidance. It reflects DER’s experience and knowledge in developing and managing the various programs for the past 25 years.”

DER-10 outlines, in great detail, the scope of activities needed to satisfy minimum requirements for the “life-cycle of the site-specific remedial programs under the SSF, BCP, ERP, and VCP, and for certain petroleum releases.” Its stated goal is to facilitate the consistent, accurate, efficient and timely completion of cleanup projects in these various programs. Nonetheless, DER-10 still provides DEC with discretion to “determine the acceptable minimum technical activities for a particular site” and declares that DER-10 is not to be construed to limit DEC’s authority to require additional investigation and/or cleanup based upon site-specific conditions.

DER-10 provides a “soup to nuts” description of the specific requirements for site investigations, cleanups, post-cleanup monitoring and site closure. It includes a chapter describing the minimum quality assurance guidelines and criteria for sampling and laboratory analysis activities. It also presents detailed technical guidance for each of the investigative and remedial steps undertaken at contaminated sites. One chapter includes procedures for assessing the environmental conditions at the site, including a detailed and focused site investigation know as a Remedial Investigation. DER-10 also details procedures for selecting the appropriate cleanup remedy at a site, including an “alternatives analysis,” dealing with the development and evaluation of remedial alternatives. Detailed guidance for the designing and implementing the site cleanup is also included. Finally, DER-10 describes requirements for site management plans (methods to ensure the safe reuse of properties where contamination will remain in place), including the use of institutional controls and engineering controls after the cleanup is completed.

A copy of DER-­‐10

CP-51: Soil Cleanup Guidance.

The Soil Cleanup Guidance, known as Commissioner’s Policy (CP)-51, was issued in October 2010 and provides the framework and procedures for the selection of soil cleanup levels applicable to each DEC’s remedial programs. CP-51 notes that while DEC's preference is that the selection of soil cleanup levels results in permanent remedies with no future land use restrictions on the site, it recognized that sometimes it is not always feasible to return a site to condition where no restrictions are required.

CP-51 states that it is intended to provide both the DEC and private parties with a uniform and consistent process for determining soil cleanup levels at a particular contaminated site. CP-51 emphasizes that it only applies to soil cleanups and not to the cleanup of other media such as groundwater. CP-51 further declares that all remedies must prevent off-site migration of contamination to the extent feasible, with special emphasis on preventing or minimizing migration onto adjacent residential properties.

CP-51 states that the site specific soil cleanup levels addressed in the policy can only be applied after the contaminated site or area of concern has been fully investigated, the original source(s) of the contamination has been dealt with in accord with applicable DEC regulations, groundwater contamination has been sufficiently evaluated and there has been a full evaluation of impacts to adjacent residential properties, surface water, aquatic ecological resources as well as indoor air (including soil vapor intrusion) impacts.

Finally, CP-51 describes how soil cleanup levels are selected for each of the DEC remedial programs. Of particular note, CP-51 declares that the goal for soil cleanups under the State Superfund and the Petroleum Spill Response Program is to restore the site to “pre-disposal” or “pre-release” conditions, to the extent feasible. Soil cleanups under the BCP are based upon the four cleanup tracks defined in the regulations. Soil cleanup levels for sites regulated under the RCRA program should eliminate risks to public health and the environment (i.e., clean the site to unrestricted use) or control such risks (i.e., clean the site to the lowest possible soil cleanup objective, regardless of site use), to the extent feasible.

A copy of CP-51

DER-­‐31: Green Remediation.

The Green Remediation Policy (DER-­‐31), issued in August 2010 and revised in January 2011, outlines DEC’s approach to remediating sites in the context of the larger environmental concerns. DER-31 defines Green Remediation as “the practice of considering all environmental effects of remedy implementation and incorporating options to minimize the environmental footprint of cleanup actions.” This policy is intended to be a “holistic approach which improves the overall sustainability of the cleanups by promoting the use of more sustainable practices and technologies.”

DER-­‐31 declares: “The purpose of this policy on green remediation is to consider cleanups in the context of the larger environment and consistently and pro-actively apply more sustainable methods to remediate the site while still protecting public health and the environment and striving to achieve the established cleanup goals. This will result in cleanups that are more sustainable, meet long-term needs of all stakeholders, protect valuable state resources such as soil, water, habitat, and the atmosphere while respecting cost concerns.”

DER-31 includes specific procedures and technologies which are intended to be less disruptive to the environment, generate less waste, increase reuse and recycling, and emit fewer pollutants to the atmosphere. Indeed, DER-31 emphasis the concept of sustainability in selecting the cleanup alternative for a site, stating: “All remedial parties, DER staff, and DER standby consultants and contractors should now consider sustainability/green remediation concepts when assembling and evaluating remedial alternatives.” Finally, DER-31 states that Green Remediation principals must be considered even after the cleanup is completed (i.e., during the site management and periodic review phases of the remedial effort).

A copy of DER-31