Clean-up Standards for Contaminated Sites
DEEP Has Presented New “Concepts” for Remediation of Contamination in Connecticut
These new concepts appear to weaken the standards for defining contamination and also to weaken the law under which DEEP can order remediation.
DEEP is accepting comments through June at DEEP.firstname.lastname@example.org. A separate opportunity for more formal public comment will be available as part of the formal process in the future. If you send comments, please send a copy to email@example.com. We will save and compile them below.
Changes in definitions are critical. Look carefully at the definitions relating to background concentration, natural condition, and anthropogenic origin.
For example, in current regulations, the background concentration means the level of a particular substance that would be there naturally. No one is required to clean up a substance in soil or water that is at the level of background, or natural, concentrations. But the proposed conceptual language alters the definition of background. The proposed language reads: "Background concentration means the site-specific concentration of a substance in environmental media that would be expected to exist in the absence of any release due to current or historical site-related or nearby activities. A background concentration may result from a combination of naturally occurring conditions and anthropogenic origins" (page 3 of 118, emphasis added).
ThisThis says that contamination caused by human activity may be considered natural if you can’t figure out where it came from. Moreover the meaning of "site-specific" is open to many different interpretations. The transformation of natural to not-necessarily-natural is emphasized by the new definition of anthropogenic origin: "Anthropogenic origin means the presence of a substance in environmental media due to the migration or deposition of a substance that is not from any single discernible off-site source and as a result of human activities unrelated to current or historical activities at the subject parcel"> (page 1 of 118).
ThisThis says that contamination due to human activity only means human activity that cannot be linked to an off-site source or an activity formerly on-site. Contamination by, say, PCBs may simply be "background" if one can’t identify where the PCBs came from.
These changes in definition are linked to a fundamental change in the law regarding contamination and obligation to remediate. Using these new definitions, dangerous levels of a contaminant can be considered “background,” and the property owner does not need to remediate. The responsibility, in some cases, may shift to the state. Most likely, the contaminated area will not be remediated but put on a long list of contaminated sites that someone should clean up sometime.
RiveRivers Alliance is also concerned by the changes regarding pesticides. We hope that people will scroll through the pesticide changes and let us know their reaction.
We will post longer comments from Rivers Alliance here and also any cogent comments that readers would like to send us.
Here follow comments by Elsie Patton, an expert in environmental protection and the cleanup of pollution. tyle="padding-left: 40px; padding-right: 40px; margin-right: 40px; margin-left: 0px; width: 893px;"> The changes to the RSRs that the Remediation Division is proposing will not protect human health, will not protect the water resources of the State and is in violation of the Water Quality Standards, the Water Pollution Control Act, and even the enabling legislation under which the RSRs were adopted.
In the Proposed Conceptual Language for the next revision of the RSRs, the Remediation Division has proposed to change the definition of background so that soil on a site that is contaminated, even at concentrations that pose a risk to human health and the environment, would not require remediation unless it can be shown that the contamination is caused by site-related activities.
The proposed conceptual language is:
“Anthropogenic origin means the presence of a substance in environmental media due to the migration or deposition of a substance that is not from any single discernable off-site source and as a result of human activities unrelated to current or historical activities at the subject parcel.”
“Background concentration means the site-specific concentration of a substance that would be expected to exist in the absence of any release due to current or historical site-related or nearby activities. A background concentration may result from a combination of naturally occurring conditions and anthropogenic origins. "
Consider that the Remediation Division previously released a discussion paper that asserted that contamination unrelated to “operations at a site” could contain contaminants at such high levels that the soil would be considered hazardous or would constitute a Significant Environmental Hazard as defined in Conn.onn. Gen. Stats. § 22a-6u, by under that would be considered hazardous or would pose a Significant Environmental Hazard Any reasonable person would construe that “unrelated to operations at a site” is the same as “unrelated to on-site activities” and therefore would be considered by the Department as “Background.”
UndeUnder section 22a-432 of the Water Pollution Control Act, any person who is maintaining a source of pollution to the waters of the state, including simple ownership of a property with soil contamination, is liable to investigate and remediate such potential source of pollution regardless of how such potential source of contamination was created and without regard to fault. There have been numerous appeals to the Superior Court regarding this issue and, the courts, including the Connecticut Supreme Court in Susan Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 382 (1993), have consistently upheld the Commissioner’s authority to require a property owner or a certifying party to remediate a source of pollution without regard to whether that person had any role in creating the contamination and without regard to how the soil pollution came to be located on that persons property.
If the commissioner adopted the proposed language as regulation, that authority would be completely undermined.
Also, with the assistance of the Office of the Attorney General, the Department has created a body of case law that expanded liability for maintaining a source of pollution to include personal liability of corporate officers and members of limited liability companies who take no action to remediate pollution. See, for example, the Supreme Court and Appellate Court decisions in BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602 (2001) and Vorlon Holding, LLC v. Commissioner of Energy and Environmental Protection, 161 Conn. App. 837 (2015).
If the Commissioner adopted these definitions, all of the above efforts of the Department and the Office of the Attorney General would also be undermined.
The proposed language is, at a minimum, unclear. What is included in “site related activities”? Would VOCs (volatile organic compounds) on a parcel that had only been used for sand and gravel extraction be considered background? Would midnight dumping of solvents by unknown parties be considered site-related? Would the placement of foundry slag on a site that had nothing to do with the foundry be considered unrelated to current or historical activities at the parcel? What about industrial waste that was used to fill a commercial property that was never used for industrial purposes?
If an LEP concludes that the contamination on a site is not related to on-site activities but the Agency disagrees, it would be the Department’s burden to prove that contamination was related to a specific on-site activity – a difficult if not impossible task given the ambiguity of the proposed regulations and the inability to identify all past site related activities. This is in stark contrast to the current strict liability scheme in which the Department only has to show that soil pollution exists without regard to what activities resulted in the presence of soil pollution.
The taxpayers of Connecticut are not more responsible for the cleanup of contamination that poses a risk to human health than the property owner who is maintaining a potential source of pollution or the certifying party under the Property Transfer Act who certified that they would remediate pollution resulting from any release on an establishment. However, of greater concern is the potential that the State wouldn’t act on its responsibility. In fact, an Assistant Director of the Remediation Division stated that it would be unlikely that the State would cleanup contamination from "anthropogenic sources".
That statue requires the Commissioner to adopt regulations that fully protect human health and the environment. Clearly a regulation that would not require the cleanup of Significant Environmental hazards would fail that legislative objective. The Attorney General should not consider the proposed revision to the RSRs as authorized by the enabling statute.
For all the above reasons, the Department should withdraw the proposed conceptual language regarding “anthropogenic origins” and “background”. The current regulations reflect the liability scheme established in the Water Pollution Control Act, the hazardous waste laws, and all other authorities that the Commissioner has to effect remediation of a site, as well the body of case law and case law that support those authorities.
End of comments from Elsie Patton
DEEP Retreat from Clean-up Standards? How Will You Know? What Can You Do?
Rivers Alliance alerted members and colleagues that a CT DEEP contracted report on possible changes to the state's remediation program was posted for comment. The title of the report is Evaluation of Risk-Based Decision Makingg. It was prepared by CDM Smith.
Some of you asked to be kept up to date. Here's news.
The comments are online.
Check out in particular the submissions by Connecticut Fund for the Environment, EHHI (Environment and Human Health Inc.), CBIA (Connecticut Business and Industry Association, in strong support), and Rivers Alliance of Connecticut.
The thrust of the report appears to be that the state should be more "flexible" in many ways in its rules for cleanup of brownfields and other contaminated sites. It proposes lowering certain standards outright. As CBIA states this position, "... complex environmental challenges cannot be successfully addressed through a myopic focus on the most stringent science." CBIA also points out that people take risks every day, and so asking people to take slight risks in order to put land and water to economically productive use is not unreasonable.
Rivers Alliance does not question that the remediation programs need review and improvement. But the emphasis in the Smith report on site-specific flexibility and "non-standard solutions" immediately creates confusion on what would actually be done where. If standards are changed either across the board or site by site, the change and level of risk should be clear. It is true that in tough economic times people may be prepared to take extra risk in return for pay. Perhaps, with public notice, that trade-off could be quantified: a 10% increase in risk of cancer could be balanced by a 10% increase in pay for working on the site, or a 10% decrease in rent for living there (forgive the Swiftian fantasy). One difficulty in quantifying the issue is that at least some of the science needs further explanation. If three states use one standard for carcinogen exposure and three states use another, what is the rationale for selecting one standard over another? It seems that in some cases, the rationale is lower cost with uncertain risk. Let's be sure the right science is being applied.
The most important response to these problematic recommendations is to insist on clarity and disclosure, both in the program and at the contaminated sites.
Local awareness and vigilance is invaluable. We will help with questions and help direct you to the right people. The report was mandated in Public Act 13-308, so the legislature has a role to play in the matter. DEEP, of course, has some authority, as does the Department of Economic and Community Development. But the interests and desires of local communities should be equally important. In other words, we all should have a voice.
Contact your legislators. Find them at http://cga.ct.gov/asp/menu/cgafindleg.asp.
Rivers Alliance of Connecticut