How should you determine the extent of soil cleanup at a proposed brownfield site? For applicants of the New York State Brownfield Cleanup Program (BCP), that decision ultimately depends on several factors, including funds available for site remediation and the intended post-cleanup use of the property.
Even before preliminary BCP materials are submitted to the New York State Department of Environmental Conservation (DEC), an applicant should consider the extent of soil clean-up they are willing to undertake. The choice can result in a difference of tens or hundreds of thousands of dollars for a development project. Further, DEC instructs applicants that the decision should reflect several factors including the overarching goal of protecting public health and the environment, as well as consideration of impacts to environmental media, like groundwater beneath or down gradient from the site.
An applicant will be required to achieve the appropriate level of soil cleanup based on one of the four cleanup "track" options under the BCP. Soil cleanup track determination is site-specific and will be dependent upon various factors, including whether the applicant will enter the program as a "volunteer" (i.e., did not cause the contamination) or "participant" (i.e., responsible for some or all the contamination), the cost of cleanup balanced with the level of contamination present at the site, and the extent of post cleanup use restrictions the applicant is willing to put on the property.
Track 1: Goal is to achieve unrestricted use of the property
Soil remediation under Track 1 must result in a finished property that allows for the unrestricted use of the property. At the outset, most prospective BCP applicants might think "well, this is what I want - we should be able to develop the property as we see fit!" However, the extent of contamination at the site or project finances may not allow for remediating the property to unrestricted use levels, which provides for the most stringent soil cleanup objectives (SCOs) provided by the DEC. Practically speaking, this means that a post-cleanup soils at a property must be left pristine (e.g., unrestricted residential structures can be built on the land, a childcare facility can be operated at the site, etc.). Unrestricted SCOs must be used throughout the entire soil matrix to the top of the bedrock. As this track requires the deepest layers of soil to be removed, it typically requires the greatest cost depending on the extent of contamination.
In addition to the application of Unrestricted SCOs, Track 1 only allows for "short-term" (i.e., less than 5 years) institutional or engineering controls. The feasibility of a short-term institutional or engineering control is many times dictated by the extent of contamination in soil or groundwater beneath the property. For example, groundwater might be so contaminated with volatile chemicals beneath the site, resulting in vapor intrusion issues to the property, that a long-term institutional or engineering control is needed. If so, the property may not qualify for Track 1 cleanup, which only allows for short-term controls.
Tracks 2, 3, and 4 allow the site owner to take into consideration the current, intended, or reasonably anticipated future use of the property (whether that is residential, restricted residential, commercial, or industrial, although single-family houses are not allowed). This may be more cost effective if Track 1 unrestricted use of the site is not necessary. Where Tracks 2 through 4 vary is with the depth of soil that the cleanup is required to remove via the SCOs, and other important factors including level of DEC input.
Track 2: Goal is to cleanup soil to first 15 feet, with restrictions and other limitations
As we note above, Track 2 (as well as Tracks 3 and 4) allow the site owner to take into consideration the current, intended, or reasonably anticipated future use of the property, whether that is residential, restricted residential, commercial or industrial (although single-family structures are not allowed).
However, unlike Track 1, which requires soil cleanup for the entire soil matrix, Track 2 requires cleanup for only to the top 15 feet of soil (or to bedrock if less than 15 feet). This significant difference in depth to soil cleanup between Tracks 1 and 2 has to be included in the project financing calculation because costs will vary depending on the size of the lot and the amount of contaminated soil that must be properly disposed. Additionally, institutional and engineering controls with respect to use of groundwater at the site can be used without regard to duration under Track 2. However, like Track 1, only short-term institutional and engineering controls with for soils are allowed under Track 2.
Track 3: Goal is to use limited site-specific soil cleanup objectives, with restrictions from previous track
Track 3 allows the applicant to propose site-specific limited modifications to the SCOs to allow the property to be put into its intended use. The DEC instructs that applicants must support such modifications to one or more of the SCOs by hard data. This track is in many ways the most preferable for commercial or industrial developers who have no interest in ever developing the property for residential use because it provides flexibility in the SCOs employed, but unlike Track 4, does not allow DEC with much discretion to determine whether a different approach for the site is appropriate
Additionally, for both Tracks 2 and 3, applicants of restricted residential, commercial or industrial use sites need to ensure that any post-cleanup materials removed from the site are managed appropriately. DEC also requires that applicants ensure that any buffer zone protecting adjacent residential use sites or ecological resources. Similar to Track 2, this track also provides for the same institutional and engineering controls restrictions.
Track 4: Use site-specific soil cleanup objectives, but gives DEC discretion and requires institutional and engineering controls
This is the least restrictive soil cleanup track, since it does not provide for specific soil cleanup levels or depths, and allows the applicant to propose site-specific SCOs. Although this track provides the applicant the most flexibility in performing more detailed evaluations by developing a cleanup plan that may be more beneficial to the site, this may also become the most burdensome. The applicant's project engineer would need to propose appropriate soil cleanup levels by providing data, and various human and environmental health risk exposure assessments to the DEC. Additionally, this track leaves DEC with significant discretion to determine whether a different approach is appropriate for the site and the proper method of implementation, if a different approach is to be used. The transactional costs of dealing with the DEC at this granular level can many times become extremely frustrating to applicants and could result in significant delays if the DEC and the applicant can't see eye-to-eye on important decisions.
Track 4 also requires that any remedy provide a cover system over exposed residual soil contamination that is otherwise not removed from the property. DEC demands that exposed soils which are not covered by structures (i.e., buildings, pavement, etc.) must at a minimum be covered with use-base SCOs in 6 NYCRR Table 375-6.8(b) (top 1 foot for proposed non-residential uses or top 2 feet for proposed restricted residential use).
Track 4 cleanups typically make the most sense in large sites with significant levels of soil contamination for sites that are looking for develop industrial or commercial properties, or limited/restricted residential uses.
With four track options available under the BCP, the decision for site owners will vary based on site-specific circumstances, weighing the cost of the soil cleanup with the intended future site use. Negotiating with the DEC as to what soil cleanup track is appropriate can also be challenging because the agency will many times request that cleanup levels be attained beyond the intended use of the property. This is where having competent environmental counsel and environmental consultants experienced in negotiating with the DEC makes all the difference.
Contact the attorneys of Periconi, LLC at 212-213-5500 if you are considering developing a contaminated property and would like to schedule a consultation to discuss the benefits of the State's Brownfield Cleanup Program or to determine if your site might qualify for the Brownfield Cleanup Program.