Environmental organizations recommend changes to state brownfields program

Nov 15th, 2011 | By | Category: Featured Story

“The Site Remediation (brownfields) program has served the state very badly for decades,” writes Sierra Club-Connecticut Chapter Legislative Chair Martin Mador.

“A dozen different programs, unclear rules, lack of economic incentives, barriers to re-mediate, etc. The DEEP has been conducting a process since the summer to examine the process and make recommendations to overhaul or re-invent it completely. The agency will make a report to the legislature next month. Gov. Dannel Malloy has said that brownfields are a priority for his administration. DEEP Commissioner Dan Esty has publicly signed on to that.”

EPA is working with the Conn. Dept. of Energy and Environmental Protection and the towns of Harwinton and Burlington to address contaminated soil at the 5-acre Mitral Corp. Site, located in Harwinton.  The Site is contaminated with chlorinated volatile organic compounds (CVOCs), most notably trichloroethylene (TCE) and tetrachloroethylene (PCE).

EPA is working with the Conn. Dept. of Energy and Environmental Protection and the towns of Harwinton and Burlington to address contaminated soil at the 5-acre Mitral Corp. Site, located in Harwinton. The Site is contaminated with chlorinated volatile organic compounds (CVOCs), most notably trichloroethylene (TCE) and tetrachloroethylene (PCE).

Nine environmental organizations have filed comments to make sure that environmental priorities figure strongly in the recommendations.

The text of that statement is below:

Graham Stevens
CT Department of Energy and Environmental Protection
79 Elm Street
Hartford, CT 06106

November 14, 2011

Re: Comments on Comprehensive Evaluation and Transformation of CT’s
Cleanup Laws

Thank you for the opportunity to submit comments. The undersigned environmental organizations provide these priority recommendations to DEEP as it considers its report to the legislature on revision of contaminated site remediation programs in the state.

Submitted by:

Sierra Club-Connecticut Chapter, Martin Mador, Legislative Chair
Connecticut Coalition for Environmental Justice, Mark A. Mitchell, Senior Policy Advisor
Rivers Alliance of Connecticut, Margaret Miner, Executive Director
Citizens for Clean Groundwater, Lisa Wadge, Executive Director
Connecticut Fund for the Environment, Jessica Morowitz, Legal Fellow
Norwalk Neighbors for Environmental Justice, Diane Lauricella
ENE (Environment Northeast), Joyce E. Kung, Connecticut Director
1000 Friends of Connecticut, Nichole Strack, Executive Director (endorses this statement, but will submit recommendations separately on additional topics not included here)
Farmington River Watershed Association, Eileen Fielding, Executive Director

We recommend the phrase “contaminated site” be used, rather than the more restrictive term “brownfield”. It encompasses far more sites in need of remediation, whereas the “brownfield” appellation specifically refers only to sites considering their reuse potential.

DEEP has engaged in a three month process to assemble recommendations for an overhaul of the state’s remediation programs. The Visioning documents and reports of the six Working Groups constitute a considerable body of observation and comment. However, the time frame imposed by the legislature for an effort of this scope was clearly inadequate, offered little opportunity to engage the general public, and compromised the ability of the working groups to do much more than document the existing system. We are concerned that comprehensive legislative proposals to re-invent Connecticut’s Contaminated Site laws and programs based on this process are premature. We recommend that the agency and legislature take the time necessary to get adequate public, local government, and other stakeholder input before conducting a major overhaul of the contaminated site remediation process.

A re-engineered Contaminated Site Remediation program cannot succeed without adequate resources at DEEP to see it though. If the legislature and governor wish to see the state seriously and significantly address remediation of the thousands of state contaminated sites so that human health and the environment are protected and the land put back into productive use, then DEEP must have the staff and resources to do this. Otherwise, we face the same continuing failure to effectively address this chronic problem which we have endured for several decades.

DEEP must ensure that the agency at the management level effectively oversees the program, and that priorities for allocation of staff resources are clearly established.

As various agencies will “own” a piece of the remediation program, the transformation of the state’s contaminated site cleanup program must ensure that agencies communicate at the commissioner and staff levels. This would include at least DEEP, DECD, DPH, DOT, OPM, and the Attorney General’s office. It will be important to structure the programs so that divided responsibilities do not act to hinder remediation efforts.

A periodic report to the public detailing remediation progress, written as both a narrative and statistical overview, should be required, with input from all agencies with remediation responsibilities.

The LEP program has become an integral part of remediation since 1995. There are current proposals to significantly expand LEP authority. This presents a tangible conflict of interest for LEPs, which can lead to inadequate remediation and loss of public confidence in the program. The state must be wary of establishing a system where LEPs contracted to the Responsible Party (RP), paid directly by the RP, and reportable to the RP, have authority over all phases of remediation, including endpoints, with minimal oversight by the agency. This potential loss of public confidence can be minimized by:

  • providing adequate agency managerial supervision and monitoring of decisions and progress -ensuring effective agency management oversight of LEP activities
  • instituting a robust auditing program, where an LEP has an expectation of periodic audits in addition to independent unannounced inspections and audits
  • instituting robust sanctions for malfeasance
  • instituting both disincentives and sanctions for substandard LEP performance which requires excessive agency oversight

Keep in mind that, whenever responsibility is outsourced for assessing contamination and performing remediation, the potential will exist for serious conflicts of interest and results which can fail the public interest.

DEEP should establish clear standards for when a site requires LEP involvement.

The state should create a public oversight board with designated membership such that environmental attorneys and LEPs do not dominate the board. They should ensure strong public stakeholder representation, including statewide environmental organizations, on the board. The board should be charged with oversight of the program overall as well as the LEP delegated authority structure.

All contaminated sites should be subject to affirmative cleanup obligations and deadlines. Priority attention should be based on risk assessments of the threat to human and environmental health, with economic considerations as secondary considerations. Threats to public and private drinking water supplies and threats to the public of direct exposure should be prime priorities.

Contaminated sites which impact urban infill, revitalization of cities, and Transit Oriented Development should receive expedited attention and incentives for remediation.

Risk evaluations must be science based, and must address both human and environmental health. While economic considerations are important in determining site remediation efforts, they must not compromise or eclipse health assessments.

The state should develop economic incentive programs to facilitate site remediation where the risks are significant but the expense a major deterrence.

The new program must recognize the importance of enforcement in the remediation process, and include both the staffing and enforcement tools to ensure compliance. The tools must include clear and certain penalties for missing deadlines for compliance. The penalty levels must be high enough that they have a deterrent effect and cannot be simply considered the cost of doing business. Both the agencies and the Attorney General’s office must have adequate staff resources to monitor performance and take enforcement action as needed.

The state should ensure that the body of remediation programs and strategies provide clarity, predictability and clear standards, which will create a level playing field for all participants.

Creation of additional remediation standards other than residential and commercial should be considered with great caution, and only where manifestly appropriate. Any new standards should not shortchange critical sites, such as schools.

Endpoints such as ELURs, which provide for less than complete remediation, must be appropriately chosen, and must not unnecessarily lock in contamination permanently in exchange for the economic savings they offer. There should be substantial community input in the selection of ELURs as a remediation option.

Regardless of changes to the existing remediation program, we must establish a publicly web-accessible database of all contaminated sites, which will track those sites from discovery of contamination, triggers requiring a specific program, entry into a program, determination of remediation strategy and standards, remediation mileposts, through arrival at an endpoint and program release. In creating this database, the state should ensure that lay persons can effectively access the database. All identified contaminated sites must be tracked by this data facility, regardless of remediation program enrollment. Submission requirements must apply to all Responsible Parties, Certifying Parties, LEPs, and all others involved in a remediation effort. Additionally, the state should mandate timely submission of new information with penalties for non-compliance. The database should be geo-searchable.

The state should designate notice requirements for a contaminated site to abutting property owners and residents, neighborhood groups, town governments, local and statewide environmental organizations, sanitarians and health districts, P&Z commissions, Inland Wetlands Commissions Economic Development commissions, Conservation Commissions, and Regional Planning Organizations. Requirements should include mandatory notice directly to some classes of stakeholders as well as notice to the general public.

The state should ensure that there is a robust opportunity for community input into site decision making, while adopting appropriate deadlines for comments such that extended windows for comment do not serve to unnecessarily delay remediation.

We suggest devising a method to conduct risk assessments and select remediation strategies using a model similar the EPA’s TMDL program, where a “site” is defined by physical considerations, such as an aquifer, rather than strictly by property boundaries. This should particularly apply where multiple contamination sources exist.

While we recognize that current law is inadequate, we want to be sure that a new system of law provides the proper balance of interests to achieve both prompt and effective cleanup of contaminated sites. For example, our willingness to support additional LEP responsibility depends on the imposition of clear, affirmative deadlines for cleaning up contamination, as well as robust oversight of the LEPs’ remediation decisions. We call on DEEP to make sure there is ample opportunity to review and comment on DEEP’s forthcoming report and legislative proposal, so as to ensure that a robust and balanced program is achieved.

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