Month: August 2011

Transforming Connecticut’s Cleanup Program: The Legislative Intent

August 31, 2011 Jim Okun

Under the leadership of Commissioner Daniel Esty, the Connecticut Department of Energy and Environmental Protection (DEEP) is continuing its drive to satisfy the legislature’s directive to transform the state’s waste site cleanup laws.   The first phase of this effort is scheduled to culminate with a December 15, 2011 report to the General Assembly.  DEEP has developed a detailed plan for putting the disparate pieces of the report together and has been working quickly to involve the range of public stakeholders.

As part of this effort, the Department held a public meeting on August 9, 2011 at DEEP Headquarters in Hartford to solicit topics for different work groups to focus on.  Graham Stevens  (Commissioner Esty’s point man for the program transformation) used a PowerPoint presentation that included twenty-nine possible topics for work group consideration.  Four of the twenty-nine were identified as the “DEEP Topics” and those correlated well with some of the ones specifically required by the legislature in Public Act No. 11-141.

Actually, the legislature included eight specific topics it wanted addressed in the report; the first seven of these could be interpreted as requests for specific information and analysis, but the eighth item was: “recommendations that will address issues identified in the report or improvements that may be necessary for a more streamlined or efficient remediation process”.  Clearly the legislature’s goal is to reshape the cleanup program to at a minimum make it more streamlined and efficient; a tacit acknowledgement that the existing program lacks those qualities.

The specific issues where the legislature seems to believe their attention is warranted include:

  1. The length of time it takes for a contaminated site to work its way through the program;
  2. Whether the number of properties going through the system is appropriate;
  3. The role of Licensed Environmental Professionals (LEPs) in the program;
  4. Information about the auditing of LEP decisions by DEEP;
  5. Whether the liability relief extended to property owners is working to get the legislative goals accomplished;
  6. An analysis of how DEEP’s complicated 16 program cleanup system is compares to state’s (such as Massachusetts) that have a single program cleanup system; and
  7. To what extent DEEP is making use of scientific and engineering precedent by the federal government and the CT Academy of Science and Engineering and developing and implementing its cleanup program.

The legislature presumably wants the report because they believe there is an opportunity to improve the DEEP’s cleanup program by a close examination and by a rigorous comparison Connecticut’s system to other state programs.  It’s never easy or comfortable for a person or an agency to closely examine itself and to compare itself critically to others.  DEEP deserves credit for its commitment to undertake this difficult process and we are proud to have the opportunity to work with them to make it happen.

Safety Advisory from US Forestry Service

August 17, 2011 Laura Carr

Walking through the woods is a great family activity.  It’s beautiful scenery, wild animals, and it’s inexpensive.  I grew up in a very wooded area where all the neighborhood kids played in the woods.  We hiked, biked, and rode horses on those woodsy trails.  It was a wonderful playground.  The trails went on for miles.  The woods are quiet now as the children have grown and moved away.  My parents still walk those trails with their two dogs and sometimes their grandchildren.   It’s a great way to spend an afternoon.  Like me, when they are in the woods my parents will pick up trash from the trails and then toss it out when they get home.

Today, I received an email from our in-house Certified Safety Professional regarding a safety advisory from the US Forestry Service that was just too important to keep to myself.  The advisory is about “one-pot” methamphetamine manufacturing.  Water bottles and liter soda bottles are being used as “cookers” to produce methamphetamine.  When the drug makers have taken what they want out of these cookers, they just throw them away where ever they are.

While, they may look harmless, these bottles are actually highly toxic and combustible.  Five were found in National forest lands and rural areas over the past weekend.  In addition the forestry services warns about the danger of other harmful objects such as chemicals or syringes that might be in the area.

Although the advisory talks about rural areas, these same conditions may exist in vacant lots and buildings.  In addition, similar looking devices may actually be chemical bombs.  The fire marshal’s office and bomb squad has discovered several of these small bombs in unexpected places like mail boxes.  The plastic containers contain a liquid and some form of metal react chemically to cause an explosion.

So the moral here is that everyone should use extreme caution should you contact any suspicious container.  Do not touch, open or smell the material.  Contact the local authorities for assistance.

 

Transforming Connecticut’s Site Cleanup Program (2)

August 15, 2011 Jim Okun

As described in an earlier post, the Connecticut DEEP (Department of Energy and Environmental Protection) is working to transform its 16 separate site cleanup programs to make the overall system more efficient and productive.  Many of the program problems are due to regulatory inflexibility; and that inflexibility reflects a fear that without close state agency involvement, cleanups will not conducted to the standards needed to protect public safety.  Despite good intentions, this fear has hindered Connecticut’s ability to develop waste site cleanup momentum.  By creating regulatory road blocks and amplifying financial risks, DEEP has depressed developer’s appetite for site cleanups.  So instead, dirty sites fester for decades.

Enter the relatively new DEEP Commissioner Daniel C. Esty.  On-leave from Yale where he is a joint professor at the Law School and the School of Forestry and Environmental Studies, he joins DEEP with a long list of accomplishments.   A champion of “next generation” regulation, he looks to private companies to take the initiative on environmental issues.  He is also an advocate of data-based environmental decision making; a principle we at OTO fervently applaud.   Esty has taken on the job of evaluating and transforming the state’s cleanup programs and his schedule is aggressive; a report is due to the State Legislature by December 15, 2011.

Commissioner Esty’s point man for managing the transformation of the cleanup regulations is Graham Stevens.  In addition to his job at DEEP, Stevens, a 1998 graduate of Clark University is also pursuing graduate studies at UConn.  After demonstrating strong leadership ability at the Department, he moved up quickly and was named Chief of Staff to former DEP Commissioner Gina McCarthy.  He now serves as the Department’s Brownfields Coordinator.  Stevens has developed a network of relationships throughout state government from the legislative to the municipal level.  As former hockey player, Esty sees Stevens as a team member who can score an important goal.

Stevens’s biggest challenge will be getting the report on transforming the site cleanup program into the net by the December 2011 deadline; a similar process in New Jersey took 18 months.  And not everyone involved necessarily wants to see him succeed. Arrayed in front of him are a group of influential players in government, legal and technical professions with vested interests in limiting the cleanup program changes.

We at OTO are fully supportive of the Commissioner’s goals.  OTO has two senior people contributing to the process.  Among our recommendations for change will be the incorporation of site specific risk assessments as a vital tool for demonstrating when a cleanup is sufficient. Whether meaningful change can ultimately be realized remains to be seen, but we are pleased to see this initiative moving forward.

Quality Assurance 101: Reproducibility

August 10, 2011 Jim Okun

Last week I posted about environmental practitioners  limiting their opinions to the areas in which they have expertise.  From there I went off on a little rant about the importance of consultants providing data to prove their conclusions and predictions.   Today’s little lecture is on the importance of scientific results being reproducible.  Reproducibility is a bedrock scientific principle.

When scientists talk about reproducibility, they are not talking about the nocturnal habits of our species.  Instead they are referring to the ability of two scientists to be able to conduct the same experiment and come up with the same result.  The experiment could be as simple as measuring the volume of a liquid or as complex as measuring the width of an atom.  Either way, if multiple scientists are able to get the same answer, the data is said to be reproducible and therefor to have scientific merit.  On the other hand if they unable to arrive at the same result, then the resulting data is said to be “irreproducible” or “non-reproducible” and the data has no scientific credibility.

Among scientists, saying that data is non-reproducible a very serious indictment.  There is a nerdy humor publication called the Journal of Irreprocucible Results, that scientists get a big chuckle over.  The fact that irreproducible results are a source of humor, should give you a sense for their value among professionals.

So what does this have to do with environmental engineering?  Glad you asked.  I can not tell you how many times OTO has been brought in for a second opinion right before a client was getting ready to spend a large amount of money on remediation.  In these cases there is generally “data” indicating a horrible environmental problem.  Yet when we retest, we are often not able to reproduce the original data; without reproducible data, the basis for implementing the remediation didn’t make sense.   Garbage in, money out the door.  Except with so much money on the line, it’s not a joke; and yes this really happens all the time.

So remember the importance of environmental data being reproducible before you make big decisions on cleanups.  It’s really the same dictum as the old carpenter’s rule: measure twice, cut once.

How Buying Contaminated Property Reduces Environmental Risk

August 8, 2011 Jim Okun

Recently we were discussing a pending real estate purchase with a client who was surprised when we commented that the best way to reduce environmental risk was to purchase a property that was already known to have soil and/or groundwater contamination that had been reported to the state.  Now let me add a couple of provisos: 1) we were talking about Massachusetts, where property purchasers are not automatically punished by the state for purchasing and trying to cleanup contaminated property; and 2) we were assuming that there was already enough testing that no big surprises were still lurking in the ground.

The advantage of purchasing contaminated property is that there are reduced expectations by the seller, buyer, lender and the state.  With a supposed “clean” property, surprises can only go in one direction, down.  Surprises with “dirty” property are often positive; it often turns out that dirty properties can be safely reused for any number of purposes.

Now there are some watch-outs, among which vapor intrusion (VI) may be the the most important.  Many properties achieved satisfactory closures and are now being reexamined by the state because the ground rules related to VI have changed.  As a result, many otherwise attractive properties that may have VI issues are now languishing.

Another possible watch-out lurking on the horizon is PCBs (polychlorinated biphenyls) in building materials.  So far this is an issue that has mostly caused problems when found in schools.  The potential clearly exists for this issue to spread beyond schools into commercial and residential structures.

Once beyond VI and PCBs, contaminated property looks like a a winner as long as the property works for the intended uses; it comes down to a case of the devil you know being better than the devil you don’t know.

Connecticut Brownfields Redevelopment

August 5, 2011 Jim Okun

When it comes to Brownfields cleanups, there may be something new in the Land of Steady Habits.  Up until quite recently, Connecticut’s efforts to encourage the cleanup of contaminated properties has been frustrated by three forces:

  1. Lack of Predictability – Parties seeking to cleanup contaminated properties are unable to see through to the end of the project because the state’s regulatory programs are just too unpredictable.    Promising redevelopment plans are tabled because when the potential economic return for a project can not be estimated, there is little chance the project will be started in the first place.
  2. Regulatory Inflexibility – In Connecticut there is a perception that enforcing the letter of the cleanup regulations is more important than achieving meaningful cleanup.  This is unfortunate, because every contaminated site is different, and the ability to craft creative solutions that reduce or eliminate risk to people and the environment should be more important than meeting strict regulatory requirements.
  3. Liability Exposure – A friend’s favorite expressions is: “no good deed goes unpunished”.   How right he is!  In Connecticut a property owner trying, but failing to cleanup a contaminated property to the state’s satisfaction can be saddled with more liability than they bargained for.  Look at this article regarding the Norwich Hospital for how the Town of Preston got saddled with $40 million in liability by the state.

Is anything changing? Maybe.  First, as part of new Brownfields legislation, the state is now offering  liability protection to innocent landowners trying to cleanup properties.   How successful this new legislation will be remains to be seen, but it is good to finally get some incentives in place to encourage positive action.

Second, the new Commissioner of the Department of Energy and Environmental Protection is seeking ways to improve the various Connecticut site cleanup programs.  If he is successful in reforming the current programs by making them easier to understand and  more predictable, then we may see more parties willing to take the risk of trying to cleanup contaminated property in Connecticut.