Friday, May 1, 2009

Green Gridlock

“Business is a uniquely human response to a moral or cosmic crisis. Whether it's a tsunami or a sustained aerial bombardment, there's the same urgent call for urban renewal.” – Brand Hauser (John Cusack), War, Inc. (2008)

As some of you know, I work for an environmental consulting and engineering company located in western Massachusetts. I also work in Connecticut pretty regularly, and have undertaken some pretty heavy major projects south of the border in recent years. I have also been considering pursuing the state’s main environmental credential, the Licensed Environmental Professional certification, and to that end have recently taken a few one-day courses to expand my knowledge of the system and how it works. I shall confine my comments to those areas with which I have experience, so I will not be speaking to natural resources issues, wetlands, endangered species, etc.

The sad thing is, it really doesn’t work. The principal speaker at the last class I went to, John Wertham, is a lawyer who has been deeply involved in environmental legislation and legal practice since the early 1980s, and who actually wrote the Connecticut Environmental Law Handbook. As part of his closing comments, and in response to the frustrated mood of his audience, he threw out his arms in a gesture of frustration and exclaimed, “The real issue is that we’ve got to change the whole system, from soup to nuts.”

The ultimate problem with the Connecticut system is that it does not provide adequate incentive either to comply with regulations, or to undertake cleanups of polluted land. One of the sad consequences of this is that, even despite the relatively high cost of commercially developable land in Connecticut, it is generally cheaper to buy a parcel of raw land, such as an old tobacco farm, and construct a strip mall or plastics factory on it than it is to redevelop a ‘brownfield’ site, land which is vacant or underutilized due to environmental problems such as pollution. At the same time, some contaminated sites can go unattended for decades, endangering public health and the environment the whole while, simply because there is no regulatory mechanism to require their evaluation or cleanup.

In fact, the cumbersome, onerous, inflexible, and draconian nature of the system provides every incentive to try to stay out of the regulated universe if possible, or if that is not possible, to fight tooth and nail to limit one’s exposure to regulations, and to avoid doing any environmental work if it is not absolutely essential or immediately beneficial.

I am no babe in the woods or idealist here—I understand that the environmental business is exactly that, a business, and that we provide a commercial service to our clients in exchange for money. It offends my nature, however, to see things done badly. In more formal terms, the failure of the system violates the original intent of the legislation that created it, as well as of the broader federal legislation on the same subject.

More to the point, the problem is how the distinction between means and ends has become blurred. Ruled and processes are means, not ends. In this case, the ultimate desired end is protection of human health and the environment, and as a corollary doing so without imposing an unbearable economic burden on the responsible parties. The former is the goal—to protect human health and the environment from hazards. The latter corollary is simple pragmatism. If costs become too onerous, responsible parties can and do simply shut down the businesses and walk away from their responsibilities altogether, leaving toxic sites as they lie, endangering human health and the environment and becoming a drag on the economy. The result is properties like the Raymark Industries site in Stratford, which is now a federal Superfund site.

The end delivered by the current system, however, is gridlock, and a failure adequately to achieve the desired goal. As such, the means need to be changed. From a systemic design standpoint, the goal should be to structure the system so that it is easier or more beneficent for one to comply with the requirements than not to comply.

I frequently compare the Connecticut system with its’ Massachusetts counterpart, because I am familiar with both and think the Massachusetts system is much, much better, and because I am the unlucky soul who has to explain to a client based in one state how the other state’s system works. The common summary of the relative merits of the two systems is that Connecticut is stuck where Massachusetts was circa 1990, with a log-jammed system creating a nightmare for property owners and that wasn’t helping the environment. The Massachusetts response was the 1993 version of Massachusetts General Laws Chapter 21E (the Massachusetts Oil and Hazardous Material Release Prevention and Response Act), the partial privatization of the system through the creation of the LSP credential, and the adoption of a standard and flexible set of release reporting, assessment, remediation, and closure requirements for contaminated sites. Connecticut, on the other hand, never had that sort of comprehensive reform, and is still stuck, in many respects, in the late 1980s, with lots of regulations but no way easily to comply with them.

The following are some of my thoughts on a few salient points.

Who’s On First?

There is no single, unified regulatory and remediation program in Connecticut. In fact, there are eight separate but overlapping programs (plus the federal Superfund sites):

o The ‘Brownfields’ program - state and federal grant funding intended to encourage redevelopment of underutilized urban sites)

o The Property Transfer Program (CGS Sections 22a-134 through 22a-134e), better known as the infamous Transfer Act, which requires that parties wishing to sell a historic generator of hazardous waste arrange for cleaning up any messes they made.

o The Voluntary Remediation Program (CGS Section 22a-133y, aka the Y Program) for properties owned by municipalities. You essentially have to meet the same requirements of a Transfer Act project.

o The Other Voluntary Remediation Program (CGS Section 22a-133x, aka the “X Program”) for private properties located in urban areas with already degraded groundwater. It’s basically the Transfer Act without a property transfer and, again, you essentially have to meet the same onerous requirements of a Transfer Act project.

o The State Superfund Program (CGS Section 22a-133d) This program handles major polluted sites, where the CTDEP Remediation Division staff directs the remediation and the State Attorney General’s Office recovers costs from the responsible parties.

o RCRA Corrective Action (CGS Section 22a-449(c)-105(h)) - RCRA is a federal statute and program regulating the handling, storage, and disposal of hazardous waste, and the RCRA Corrective Action component directs the cleanup of hazardous waste treatment, storage, and disposal facilities. In most states, and since 2002 in Connecticut, the day-to-day management of RCRA is delegated by the EPA to the state environmental agency.

o Leaking Underground Storage Tank (LUST) Program (CGS 22a-449(d)-1) – This program governs the remediation of releases from leaking underground storage tanks such as those at gasoline stations, and incorporates a trust fund funded by the legislature out of a tax on gasoline and other products, intended to ensure that money is available for remediation in the event that the property becomes abandoned or insolvent, and is used to reimburse cleanup costs.

o Significant Environmental Hazard Program (CGS Section 22a-6 (u) – Established in 1998, this program requires reporting and elimination of severe hazards to public health or the environment when they are discovered, including (unlike the ERSP program below) historic releases where the degree of contamination is indicated by concentrations in a sample.

o The Emergency Response and Spill Prevention program (Section 22a-450) – This is a call center and emergency response unit within the Remediation Division, which receives notification of the approximately 8,000 sudden spills (such as gasoline spills from car accidents) that happen each year, and directs the emergency cleanups of about 1,800 of them. This does not include contamination resulting from historic releases or in a sample.

o The Potable Water Program – This program ensures that individuals whose private or public drinking water supply wells are or are at risk of being contaminated have access to safe drinking water. Approximately one-third of the population of Connecticut, including most of the populations of rural areas, obtains potable water through public or private water supply wells, so protection of the water supply is understandably essential.

At best, this multiplicity is an egregious waste of resources, and at worst it contributes to the logjam by creating overlapping requirements, redundancy, and confusion over what a responsible party’s actual responsibilities are. It’s possible for one site to be juggling responsibilities to four of the eight programs at the same time—for example, spill response and Significant Hazard responsibilities at a Transfer Act site where one of the releases was from an underground tank regulated under the LUST program.

There isn’t even a single master list of all the contaminated sites in the state—each of the programs has its own list.

By contrast, Massachusetts has a single, integrated remediation program that oversees pretty much everything. The various Connecticut programs generally handle the same spectrum of contaminated sites as the MADEP’s Bureau of Waste Site Cleanup, but the Massachusetts system does it far more efficiently and thoroughly, using a single set of regulations with clear requirements and deadlines, and with far fewer opportunities for a site to fall into limbo, where contamination is known to exist but nothing is being done about it. I know of at least or forty Connecticut ‘limbo’ sites in the few towns closest to me, but only two in an equivalent area on the Massachusetts side of the border.

In the most conspicuous such example that comes to mind, I performed work at an old mill in Stafford, CT in the summer and fall of 2006. The site had been listed as a Suspected Hazardous Waste Site in 1989, after a shipment of hazardous waste being transported from the site caught fire, but as of 2009 there has never been a formal evaluation of the site by the CTDEP.


Once a site gets into a regulatory inbox, it’s virtually impossible to get it out and be ‘done.’ One of the most beloved terms of environmental consultants, property owners, realtors, lawyers, and other concerned parties is ‘regulatory closure,’ which in its various synonyms and permutations essentially means that the cleanup is complete, the state or other regulatory body has signed off, and that the whole affair is effectively over and done with. One of the biggest shocks I had when I started working in Connecticut is that regulatory closure in the usual sense just doesn’t really exist, and that environmental liabilities are effectively eternal, even when the contamination has been completely removed. An LEP Verification is not really a counterpart to a Massachusetts Response Action Outcome; it’s a milestone, rather than the end of the line.

There are two reasons for this. The first is that the Remediation Standard Regulations had extremely stringent groundwater standards, which are very difficult to meet even under ideal circumstances, and ‘complying’ with the RSRs basically means reducing all contaminants to nil. This is an extremely difficult process, particularly since the RSRs require a certain number of consecutive quarterly or biennial sampling rounds that come back ‘clean,’ and the regulatory clock for the post-remedial or compliance monitoring effectively resets whenever a small blip of contamination comes back in any sample. This monitoring can go on for over a decade before an LEP can even think about preparing a Verification, and there is no guarantee that the RSRs will ever be met. In such cases, since the Transfer Act specifies that releases must be identified before sale but sets no real timeline for cleaning them up, it’s easier to simply transfer the responsibility continuing Transfer Act requirements to the property buyer. The property goes on operating, the water periodically gets tested as the environmental consulting company treats the project as a financial annuity, but there is no way to (or incentive to) reach a final solution and closure.

The second reason is that the CTDEP is understaffed, inefficient, and unwilling to let go of sites. Nobody wants to be the DEP case officer who signs off on a site as clean, only to have it turn into the next Love Canal.

The ultimate result is that there is little incentive to report or remediate releases for which the cost of reporting it and being saddled with long-term cleanup costs outweighs the likely consequences of not reporting.

What are the rules?

The current regulatory process relies too heavily on legislative statute and CTDEP departmental guidance, resulting in a very disorganized, confusing, and contradictory set of rules which must be followed. Many of the state’s primary environmental statutes, such as the Connecticut Transfer Act, have no corresponding and implementing regulations. The CTDEP lacks the regulatory machinery to promulgate comprehensive regulations like the Massachusetts Contingency Plan, so the only ways to effect even limited reforms is to amend statutes, or for the CTDEP to issue ‘guidance’ documents which, in addition to specifying technical or procedures to be followed by consultants (e.g. how to collect groundwater samples or to design an engineered cover), stretch the definition of ‘guidance’ by prescribing specific interpretations of statute, imposing financial surety requirements, and defining the standard of practice over a broad spectrum rather than on a specific issue. The guidance is resented as being arbitrary and capricious, the statues are mercurial and change with each legislative session (often through riders attached to other bills), and it’s all but impossible to keep up to date with either.

The other effect of relying so heavily on statute instead of regulations is that the lawyers can get involved in interpreting statute to an extent that they generally can’t in regulations, and the technical aspects of assessment and cleanup become subordinated to the processes of civil and administrative law. This does absolutely nothing to speed up or streamline the process, especially since some of the statutes allow for transfers of responsibility in a way that other states regulations generally do not- for example, allowing the participants in a transaction to designate the buyer of a property the Certifying Party (the one responsible for arranging cleanup) for a Transfer Act project, rather than the historic occupant and seller.

There are, in fact, only two sets of regulations in the remediation sphere—the LEP professional conduct regulations, and the Remediation Standard Regulations, or RSRs. The former provides for professional licensure of LEPs, individuals licensed by the state for the purposes of issuing Verifications of Transfer Act and voluntary remediation sites, and sets professional standards of conduct. The RSRs (together with the supplementary List of Additional Polluting Substances) prescribe numerical standards to which contamination must be reduced, and protocols for demonstrating that contamination has been adequately reduced.

Each of these regulations is, in the original intent, of decidedly limited scope. Due in part to the lack of other available structures, one of the current general trends in Connecticut is the attempt by the CTDEP to use the Licensed Environmental Professionals and the RSRs for purposes for which they were never intended. The scope of matters for which the LEP stamp could be used is extremely limited, and at one point the CTDEP only recognized the credential when used in the context of a Transfer Act or Voluntary Remediation Verification, and the credential was not necessary for doing most of the other types of work commonly performed, such as LUST remediation. By contrast, the Massachusetts LSP credential is required for all MCP filings.

The RSRs currently apply only to Transfer Act sites, voluntary remediation sites, or sites subject to a CTDEP order requiring cleanup, although the RSR numerical standards are also frequently used as a guideline for other types of cleanup work, such as residential heating oil spills or for business risk decisions based on due-diligence testing.

The matter of groundwater in the RSRs is particularly sensitive since, as discussed above, the RSRs require at least three years of quarterly monitoring following the completion of any remediation work in order to prove that the contamination has been reduced or eliminated. This makes any RSR project an inherently long-term affair. The RSRs are also frequently criticized for having too many separate criteria to meet: Direct Exposure Criteria, Pollutant Mobility Criteria, Volatization Criteria, separate Groundwater and Surface Water Protection Criteria, etc. Many of these numerical standards have very low thresholds, to the point where they are often criticized as unrealistic.

Part of the reasoning for the strict groundwater standards is that the CTDEP, the CT Department of Health, and other regulatory agencies deliberately chose to apply the most stringent (GA classification) standards to all parts of the state where groundwater was not known to be too degraded to drink. The reasoning is that one should be able to go almost anywhere in the state and use the water for consumption. Massachusetts, on the other hand, only applies the most stringent standards in areas physically or hydraulically adjacent to existing water supply points.

The CTDEP is currently attempting to extend formal RSR requirements to other types of work, including Significant Environmental Hazards and some emergency spills. The apparent objective is to eventually use the RSRs as a uniform set of remediation criteria for all types of sites and releases, and the reasoning for this ‘back alley’ approach is likely due to the inability of the Department or Legislature to enact any new comprehensive regulations.

While this would create a better means of ensuring follow-up and a degree of closure for sudden releases and Significant Environmental Hazards, many of which fall off the radar screen, a healthy degree of praxis is required. The requirement for long-term groundwater monitoring, for example, is warranted when dealing with an industrial site where there may or may not be a groundwater plume, but it would certainly be superfluous when addressing a sudden release of material when other means can be used to demonstrate that groundwater has not been impacted.

The consultant community has reservations about this new applicability will limit their flexibility in handling such situations, as they currently have a wider decision-making latitude in handling them than on projects where the RSRs are a factor, especially since strictly applying the RSRs as they currently are to all releases will extend and complicate the process, as well as driving costs up, thus increasing the existing disincentive to report and remediate the release.

Many LEPs, for their part, are also concerned about how the CTDEP is now extending the utility of the LEP credential to types of work that many LEPs had never expected it to cover, such as certification of LUST reimbursement work summaries or certification of remedial wastewater discharges, a role that had historically been restricted to registered professional engineers. One of the more common concerns is that LEPs will be pressured to take on work outside their professional comfort zones. The environmental field is very competitive, and if the use of an LEP to fill these new roles at, for example, a gasoline station remediation project, would save the client the cost of retaining a PE and ensure a faster turnaround on the LUST reimbursement, the nature of the market will likely make it de rigueur for LEPs to take on these roles.

This lack of coherence, comprehensiveness, and clarity in the regulations feeds directly into the next problem, which I have titled:

The War Over ‘Professional Judgment.’

The Connecticut DEP is the ultimate arbiter of the ‘standard of care’ for environmental assessment and remediation. It does not, however, do much in the way of direct oversight of remediation work, and these sites consist primarily of State Superfund, X and Y programs, and some Transfer Act sites. The other programs, including the LUST cleanups and most Transfer Act sites, generally receive Departmental review and input only when a report, work plan or Verification is filed. Most of the quotidian environmental work is, however, done by private consultants working on behalf of property owners, and who are expected to use their professional judgment in conducting their work.

In the tangle of regulations, statute, guidance, and differing programs, however, there is no clear and invariant standard for what constitutes a healthy professional judgment.

The Department wants a uniform standard of care in order to ensure that work is done properly, in order to protect human health and the environment, while the consultant community fears both the lack of options this will leave for them in serving their clients, and any possible increase in costs.

This climate also produces a vicious circle problem—the CTDEP argues that consultants are expected to use their “professional judgment” in conducting projects, but many consultants are reluctant to propound such judgments in print for fear that the CTDEP will countermand them, or for fear of legal action by the state or the client (or both!) if the work is found to be inadequate, and attempt to defer decision-making to the Remediation Division case officer, who in many cases is loath to exceed his authority by making such decisions, and who may well see them as the consultant asking the CTDEP to do the consultant’s job for him.

As is the case in most states, consultants see the CTDEP staff as faceless, out-of-touch bureaucrats who wouldn’t last a minute in the private sector, while the DEP is aware that consultants are in business to make money, and has constantly to worry about consultants putting money over quality of work, or being paid to make problems disappear. Many veteran engineers or hydrogeologists also resent regulatory review as an opportunity for their work to be nitpicked by inexperienced junior analysts in a Hartford office building, and many younger professionals also worry that their seniors haven’t kept up to date on recent regulatory or technical developments.

There are distinct elements of truth to all of these stereotypes.

Remediation Division staff often don’t visit many of the sites they’re notionally overseeing, since a staff analyst may have dozens of sites on his desk at any given time, many of which are in limbo. Consultants, for their part, are constantly under immense pressure to deliver results beneficent to the client for as little cost as possible, and the temptation to fudge the facts or numbers to get over a regulatory hurdle can be extremely strong.

The more subtle question is, to what extent ought professional judgment be a simple implementation of a standard of care? Is meeting the regulatory requirements all that is required to meet a standard of care? Once again, it’s a question of means and ends. The CTDEP has a tendency to conflate the two, seeing compliance with the RSRs or other guidance as the essential standard of care, in that if the RSRs are met, the CTDEP can presume that human health and the environment are adequately protected. The RSRs, however, are the ends, rather than the means. What is entirely missing from them is the ‘how do we get there from here’ component. Decisions such as whether to excavate contaminated soil or to treat it in-situ are still by and large at the discretion of the consultant, and those are the means by which the RSRs can be met. The means should be left up to the consultants, so long as they can prove that the means selected won’t make the problem worse rather than better.

It is readily apparent, however, that eliciting a unity of thought from the consulting community is only slightly easier than herding cats. I have often remarked after professional development classes that God must be glad there were no engineers present at the creation of the universe, because the Almighty would have got no further than “let there be light” before being interrupted with questions such as: ‘what color light?’ or ‘what about prisms?’ or ‘ does ultraviolet count?’ or the inevitable ‘who’s going to pay for all this light?’

Consultants are, essentially, paid to think and ask questions and depending on their background and inclination, two experienced consultants may well take entirely different but equally valid approaches to the same problem, and no two sites are ever exactly the same. Sometimes it is the best thing possible for a project to have a recent Ph.D. in toxicology review a report prepared by a grizzled civil engineer, just because the toxicologist will bring a new pair of eyes and a fresh perspective to the site, the work, and the potential impacts to human health and the environment.

This is, in a nutshell, the nature of the means-versus-ends issue, and why the standard of care should not be reduced to a cookbook of methods or a punch-list of decisions. There is already an unfortunate tendency to do this on certain types of sites which recur frequently, such as gasoline stations, where the nature of the release, the contaminants of concern, and remediation options are generally well-known from the outset, and when the project has a generous but finite budget in the form of LUST fund reimbursement payments.

It is in resenting this tendency to reduce matters to punch-lists and cookbooks that consultants particularly rankle at what they can sometimes rightly see as unreasonable technical mandates that dictate the standard of care. For example, consider a hypothetical situation involving an area of soil contaminated with waste oil. An LEP or other consultant’s ‘professional judgment’ might suggest collecting four samples, but the CTDEP could well argue that the acceptable standard of care for the same issue should include twelve samples rather than four, as well as analysis for volatile organics, PCBs, and heavy metals in addition to petroleum hydrocarbons. In this situation, the consultant is essentially locked into doing what the CTDEP deems appropriate, regardless of whether a consultant in his professional judgment may consider it excessive. The consultant might also be faced with the need to evaluate possible natural interferences—for example, heavy metals such as arsenic, chromium, and lead occur naturally in soil (sometimes at concentrations exceeding RSR criteria), but are also commonly found in waste oil. The consultant would thus have to incur additional costs determining how much of the chromium or arsenic was due to the waste oil as opposed to a natural background level of the element, for fear of having his work rejected by the CTDEP. At the same time, waste oil can very well contain PCBs, VOCs, and metals, and petroleum testing may well not be enough to evaluate all the potential hazards associated with the release—the oil might contain a dangerous concentration of PCBs, which don’t show up on a total petroleum hydrocarbon analysis.

Ultimately, however, the consultant is put in the awkward position of explaining the significantly greater costs to the frustrated and frequently cash-strapped client, who may accuse the consultant of milking the job for more money.

Once again, neither side is wholly right nor wrong, (and some consultants do milk jobs for every cent they can get) but it is for reasons like this that CTDEP ‘guidance’ is frequently resented as meddlesome short-circuiting of the idea of professional judgment at best and at worst as just one more club with which to browbeat the consultant. More to the point, regulations such as the Massachusetts Contingency Plan are no sovereign cure for incompetence or chicanery, so there must always be regulators watching the watchmen.

As a brief aside, given that continuing education is generally at the bottom of an environmental professional’s list of priorities, a new rule or procedure can be guaranteed to be almost automatically resented, just because it triggers the consultant’s automatic “oh God, one more damn thing I can get sued for forgetting” reaction.

The Infamous Transfer Act

Of the eight CTDEP remediation programs, the Transfer Act is easily the most notorious, primarily because it is so onerous, and because its statutory ‘footprint’ extends to potentially every property in the state of Connecticut. It is no secret that the Transfer Act was a badly-written law when it was enacted in 1985, the ramifications had not been adequately considered, and that that it now consists of a crazy-quilt of amendments. One of the peculiar hurdles of the Transfer Act is that the applicability of it to a property is a legal and statutory question rather than a technical and regulatory question, and the decision needs to be rendered by an attorney rather than an environmental consultant.

What is less obvious is the applicability—the Transfer Act applies to a property by virtue of historic use (e.g., as a dry cleaner) or by virtue of the historic generation of hazardous waste on the site. In either case, the site is presumed to be contaminated until it can be proven not to be contaminated, and for which proof there is a very high standard. In essence, properties that qualify as ‘establishments’ subject to the Transfer Act are presumed ‘guilty’ until proven innocent.

There is also an entire legal and technical industry devoted to keeping properties ‘out’ of the Transfer Act envelope. This industry functions in large part by parsing and rationalizing hazardous waste generation, since the threshold for waste generation is 100 kilograms of RCRA, Connecticut-regulated, or PCB waste in any one month, or in pettifogging the historical details of a site as to whether the historic use as a woodworking shop during the 1970s included use as a furniture stripping facility. In the absence of incontrovertible proof that the Transfer Act does apply to a site, whether it is known to be contaminated or not, legal counsel can make an argument from silence that since no proof that the Act applies to the site could be found, that the Act does not apply. Violations of the Transfer Act, if discovered, can result in severe civil and criminal penalties.

One of the most common tactics is, in the case of a facility closure or other event where a large amount of waste was removed at once, is to divide the quantity of waste shipped by the number of months over which it was allegedly generated, so that on paper, a site which shipped 900kg of waste in one month supposedly only ‘generated’ 90kg of waste per month over ten months. This is, however, based on a disingenuous and semantic conflation between ‘shipping’ waste and ‘generating’ it, and is a very risky argument to make because it violates both the spirit and the letter of the Transfer Act statute’s “generated in any one month” language. This interpretation also violates the spirit and letter of the original RCRA statute (which is incorporated by reference into the Connecticut Hazardous Waste Management Regulations), which defines a ‘generator’ of waste as “any person, by site, whose act or process produces hazardous waste identified or listed in part 261 of this chapter or whose act first causes a hazardous waste to become subject to regulation.” The crux of this definition is the creation of the waste, rather than the shipping of the waste, but the loophole depends on the administrative reality that waste frequently does not become a matter of public or intramural record until it is shipped under a hazardous waste manifest, which documents (or the absence of such documents) promptly become valued data sources for use in Transfer Act decisions.

As an aside, 100kg of waste is equivalent to 220 pounds, or approximately one-half of a 55-gallon drum if the density of the material is similar to water.

At the same time, stockpiling waste on a site and shipping it off in rationed 80kg increments per month is risky because it can easily lead to a firm having excessive quantities of hazardous waste on-site or to holding waste on the site in excess of the allowed timeframes, in either case violating the site’s CTDEP or RCRA hazardous waste storage and handling permit. A RCRA inspector who discovers ten tons of waste in your warehouse will not care about your potential Transfer Act obligations; he will likely order the waste to be removed and your facility returned to compliance immediately. If you are a RCRA Small Quantity Generator, in order to return to compliance you would have to ship 3.4 tons or more of waste in order to meet the 13,200-pound (6.6 tons) waste storage allowance for a Small Quantity Generator, which would put you well over the Transfer Act threshold. In view of the potentially onerous burden of the Transfer Act, many business owners may in a cost/benefit analysis consider it to be worthwhile to violate RCRA (where the notionally random nature of inspections is mistaken for toothlessness) in order to avoid tripping a Transfer Act threshold.

By way of a brief digression, one of the odd features of the Act is that it makes no allowance in the waste generation threshold for the type or characteristics of the hazardous waste generated. For example, it does not distinguish between hazardous waste and ‘acutely hazardous’ waste. This is an essential distinction in RCRA statute and regulations, since the Small Quantity Generator requirements, apply to generators of one kilogram of acutely hazardous waste (such as arsenic, pesticides, or mercury, or other substances included on the “U List” at 40 CFR 261.33 (f)) as well as to 1,000 kilograms of non-acute hazardous waste. The result is that a facility which generated 50 kilograms of extremely toxic, environmentally persistent arsenic compounds as a waste stream would not exceed the Transfer Act thresholds, while a dairy which generated 200 kilos of comparatively harmless, environmentally non-persistent sodium hydroxide cleaning solution waste (hazardous by being characteristically corrosive) would trip the threshold and be subject to the Transfer Act.

Other avenues, particularly in the sphere of large corporate transactions, can include extremely convoluted contracts, leases, or purchase and sale agreements which defer, share, or duck the Transfer Act requirements by structuring the transaction to take advantage of the exemptions for certain types of transactions which are periodically added to the Act.

The sad irony is that while the Transfer Act was initially conceived as a means of regulating major industrial polluters, the worst sufferers are generally the small businessmen who don’t know about Transfer Act thresholds until it is too late, while major industrial corporations can afford legal and technical help to proactively avoid triggering a threshold through careful waste management, pre-transfer voluntary remediation, or legal structuring.


Since I do not wish to be considered one of those who presumes to criticize while not knowing what to suggest, I offer the following as suggestions for what would be, to my own mind, a wish-list of things to be included in a set of reforms:

  • Integrate the numerous existing cleanup systems, perhaps combining them into two programs, one to handle sudden releases and immediate hazard situations, and the other to handle the larger, long-term problem. In addition to saving a great deal of time and money, it would also provide the opportunity to streamline and homogenize the requirements for different types of sites, e.g. a site that is subject to Significant Hazard, LUST, and Transfer Act requirements.

  • Establish a standard system of timelines for managing remediation projects.

  • Establish a uniform system for reporting and tracking releases of oil or hazardous material. The current system of multiple lists maintained by different divisions of the CTDEP is awkward and makes it hard to manage sites effectively.

  • Prepare some formal standards less stringent than the RSRs, for use in situations where regulatory standards are needed but where the nature and extent of the release do not warrant a need to meet the RSRs as a whole, e.g. a residential heating oil release or a surficial spill.

  • The CTDEP should provide more advance notice of the publication of guidance documents, and ideally could provide a brief seminar on the new requirements before they go into effect.

  • Allow for more risk-based decisions on cleanup criteria, as opposed to blind adherence to numerical standards. There is very little sense in putting the effort into remediating a site to drinking water standards if is located in an urban industrial area where there is virtually no chance of a potable water supply source ever being installed on the site.

  • The CTDEP should issue a formal statement of policy describing the extent to which compliance with CTDEP guidance is mandatory or optional, and also the extent to which full compliance with CTDEP guidance guarantees (or does not guarantee) CTDEP approval of sampling methodologies, engineered cover designs, and the like. A master list of all the currently valid guidance documents would also be extremely useful.

  • The two suggestions above would, ideally, help reduce the current antagonism between the CTDEP and the consultant community. If both sides are on the same page, perhaps the CTDEP will be more willing to trust consultants to do things properly, and the consultants will not feel like they are lining up to be raked over the coals.

  • Disentangle the legal and financial issues from the regulatory and technical ones, ideally by putting into effect a set of comprehensive regulations analogous to (though not necessarily mirroring) the Massachusetts Contingency Plan, and running the remediation requirements on regulations as opposed to statutes. and statutory or regulatory requirements for remedial action necessary to protect human health and the environment. should not be forced (or allowed) to wait for legal issues to be resolved. I don’t wish to suggest coarsely that we should lock the lawyers out of the business, since the responsible parties and other property owners have a genuine need of legal counsel to look after their interests. Legal counsel and technical consultants should, however, be free to operate within separate spheres.

Most of these suggestions are concerned with changes to the CTDEP, but I have several suggestions made with consultants in mind:

  • Respect your own professional judgment, but remain open to the possibility that there might be more to a problem than what you see.

  • Though it flies in the face of the increasing corporatization of the field—witness the recent ascendancy of the leviathans known as GZA GeoEnvironmental, AECOMM, and Arcadis—remember that your work is not a commodity that can be provided off-the-shelf, but is an individualized professional service, each instance of which requires great thought and scrutiny. One of the great problems of the last few years is that the business and financial opportunities afforded by the real estate boom came to influence the internal workings and decision-making processed of consulting companies.

  • It is no secret that times are hard and that work is scarce, but be cautious in the projects you take on and the promises you make. There is a definite incentive these days to try to grab preferred services or exclusive vendor contracts, but be careful lest you get drawn in over your head.

  • Don’t skimp on a Phase I assessment, since it sets the foundation for everything else.

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