The New York State Department of Environmental Conservation (“DEC”) recently issued CP-51/Soil Cleanup Guidance, which applies to each of the remedial programs administered by DEC’s Division of Environmental Remediation (including, inter alia, the Inactive Hazardous Waste Disposal Site Remediation Program, the Brownfield Cleanup Program and the Spill Response Program). The new guidance replaces Technical Administrative Guidance Memorandum (“TAGM”) 4046: Determination of Soil Cleanup Objectives and Cleanup Levels, dated January 24, 1994.
By providing for defined remedial approaches and uniform standards, CP-51 marks an important departure from TAGM which provided recommended soil cleanup objectives (“RSCOs”), but did not explain how the Department would use those RSCOs in any particular remedial program or in any particular case. Promulgation of the new Part 375 Soil Cleanup Objectives (“SCOs”) in 2007, which specified that they applied to the Brownfield Cleanup Program and the State Superfund Program, lead to an odd situation in which different programs administered by Department (for example the Spills and Brownfield Cleanup Programs) applied different soil cleanup objectives in similar locations and matters without any explanation how or why this was being done.
The new guidance sets forth the procedure for selecting the appropriate soil cleanup levels under each remedial program, as well as for determining whether the standards for protection of ecological resources or protection of groundwater should apply. It also discusses soil cleanup levels to address “nuisance conditions” such as odors and staining, polycyclic aromatic hydrocarbons (“PAHs”) and polychlorinated biphenyls (“PCBs”).
CP-51 supplements the regulatory soil cleanup objectives (“SCOs”) by establishing supplemental SCOs (“SSCOs”) for those chemical compounds for which Recommended Soil Cleanup Objectives had been established under TAGM, but were excluded from DEC’s Part 375 regulations. Parties may also elect to determine site-specific soil cleanup levels, but must do so in accordance with the same approach utilized by DEC in establishing the SCOs and SSCOs.
In an apparent effort to address recent BCP case law to the contrary, DEC emphasizes that SCOs and SSCOs are merely screening tools and that:
The exceedance of one or more applicable SCOs or SSCOs…alone does not trigger the need for remedial action, define “unacceptable” levels of contaminants in soil, or indicates that a site qualifies for any DEC remedial program…
(CP-51/Soil Cleanup Guidance at 12.)
A copy of the CP 51 is available here.
