Inactive Hazardous Waste Disposal Site Program FAQ

Cleanup of Inactive Hazardous Waste Disposal Sites in New York

1. How are sites selected for cleanup?

Suspected sites are investigated (Preliminary Site Assessment or PSA) to determine if hazardous waste is present and a significant threat to public health or the environment exists. See PSA Fact Sheet for more information. The sites which are deemed to require remediation (Class 2 sites) are then prioritized based on the degree of impact to human health and the environment. A site is given a priority of 1, 2, or 3, with sites ranked 1 receiving highest priority for cleanup.

2. What is the definition of "significant threat"?

A significant threat is deemed to exist if the presence of hazardous waste at a site results in, or is reasonably likely to result in:

a significantly increased risk to the public health;
a significant adverse impact to fish and wildlife;
a significant adverse impact due to a fire, spill, explosion, or the generation of toxic gases; or
other significant environmental damage.
3. What is the National Priorities List (NPL)? How are sites selected for the NPL?

The National Priorities List (NPL) is the federal listing of sites eligible for remediation through the Federal Superfund program. The selection process begins with a Preliminary Assessment of the site. If the assessment shows that the site is likely to qualify for listing on the NPL, the site is investigated further and given a numerical score based on EPA's Hazard Ranking System. Sites with scores over 28.5 can be proposed for listing on the NPL. After public comments are received and considered, EPA may, at the request of the Governor or Commissioner of DEC, add the site to the list of NPL sites.

4. What is the relationship between the DEC and EPA on NPL sites?

Generally, the EPA is the lead agency responsible for the remediation of most of the NPL sites in New York State. The DEC acts in a support agency capacity for these sites. The NPL sites are an important part of New York's Inactive Hazardous Waste Disposal Remedial Program, since they are generally the most seriously contaminated sites and require a more complex and costly cleanup. DEC takes its support role very seriously in order to ensure that these sites are properly remediated. Federal grants cover the administrative costs incurred by DEC in its support agency role. New York State, through the 1986 Environmental Quality Bond Act (EQBA), pays 10% of the remedial action (construction) costs of sites remediated under the Federal Superfund. In some cases, EPA delegates lead responsibility for remediation of an NPL site in New York to DEC under a cooperative agreement.

5. Why aren't all municipal waste disposal sites considered hazardous waste sites since they all have hazardous waste in them (household hazardous wastes, at a minimum)?

Most municipal landfills are not formally listed as hazardous waste sites because the definition of hazardous waste contained in New York State law excludes household hazardous waste. Therefore, Bond Act funds cannot legally be spent for a site which contains only household hazardous wastes. In order for a municipal waste landfill to be considered a hazardous waste site, it must be determined that hazardous waste present at the site was commercial or industrial in origin. Municipal landfills are handled within the agency by the Division of Solid and Hazardous Materials under the provisions of Part 360. Closure of a municipal landfill under Part 360 is environmentally protective, and most closures of municipal landfills that are also hazardous waste sites are completed according to the provisions of Part 360.

6. How many sites are there in New York State? Are there going to be more? How many are expected to be identified over the life of the program?

As of April 1, 1999, 902 hazardous waste sites have been identified as needing remediation. Remediation has been completed at 364 sites and is ongoing or needed at 538 Class 2 sites.

DEC expects that the total number of sites requiring remediation will continue to increase in the foreseeable future.

7. How many sites have been cleaned up in New York State?

As of April 1, 1999 a total of 364 sites have been remediated. This includes only those sites which have been reclassified or delisted from the Registry. There are a number of other sites at which all necessary work has been completed but have not been reclassified to a "cleaned up" status. These sites are in reality cleaned up, and are currently in the formal reclassification/delisting process.

Many times we use "cleaned up" as an all inclusive term for sites we have completed. A more accurate term is "remediated."

8. What portion of the sites are remediated by responsible parties?

As a result of DEC's very aggressive enforcement program and industries' willingness to take responsibility for remediating their own sites, responsible parties are funding cleanup at more than two-thirds of New York's hazardous waste sites. In terms of costs, responsible parties have contributed approximately 66% of the total funds committed to hazardous waste site remediation in New York to date.

9. Why contain wastes at a site rather than excavate the wastes and take them off-site? Doesn't DEC have a policy preferring permanent remedies?

DEC does prefer use of permanent remedies. Treatment of wastes is preferred over containing wastes in place. However, for landfills, such as municipal landfills which contain hazardous waste, in-place containment may be the only feasible remedial alternative. For example, at a small industrial landfill (Columbia Mills), cost estimates were $3 million for capping; in contrast it would cost approximately $15 to $20 million for excavation of wastes and off-site disposal. Since both remedies would be protective of public health and the environment, we must give consideration to using the cost savings for remediating other sites.

10. What is a Record of Decision (ROD)?

A Record of Decision is a written record which summarizes the analysis of remedial alternatives conducted for every site and which provides a clear explanation why the chosen remedy was selected. See ROD Fact Sheet for more information.

11. What is an IRM? Why is an IRM often conducted before final remediation of a site begins?

An Interim Remedial Measure (IRM) is a remedial response action taken in order to quickly reduce risks to public health and the environment posed by hazardous wastes at a site. Examples of IRMs include removing contaminated soil and drums, providing alternative water supplies, and securing sites to prohibit uncontrolled access. Because the nature of the contamination problem is often obvious, an IRM can be undertaken without first conducting an extensive investigation. On the other hand, final remedial construction at most sites cannot begin until the site has been fully investigated and all possible remedial alternatives have been considered.

Even though IRMs are intended to provide a partial rather than complete remedial response, they often reduce significantly the scope and cost of the final remedy. In some instances, an IRM may even prove to be all that is necessary. In such a case, public comment will be solicited before making a final determination that the site was fully remediated.

See IRM Fact Sheet for more information.

12. What is the Emergency Removal Program?

The Emergency Removal Program allows DEC to respond to emergency situations at locations that are not yet Registry sites. Cleanup of hazardous materials spilled from overturned trucks, removal of soil and water contaminated by leaking drums and removal of abandoned drums are examples of emergency responses. This program also allows DEC to assist homeowners whose water supply has been contaminated by a listed inactive hazardous disposal waste site. For some emergency actions (generally ones that require larger dollar amounts), DEC requests that the U. S. Environmental Protection Agency (EPA) perform the work under the Federal Removal Program.

13. How much does it cost to remediate a site?

The average cost for a SSF site is estimated at $3.9 million for RI/FS, design, and construction. Federal sites typically cost more to remediate due to larger size and increased complexity. EPA uses a national cost average of $25 million per site. In New York State, total costs for Federal Superfund sites have ranged from $100,000 to over $100 million.

14. Why does DEC hire consultants to do some of the cleanup work instead of using its own personnel?

The use of consultants gives the program the flexibility and added resources needed to carry out within a reasonable time frame the large number of investigation, design and construction projects which must be completed. To further enhance the program's effectiveness, legislation was signed in 1988 giving DEC special authority to develop standby contracts for use in the hazardous waste remediation program. This new approach to contracting had never been used before in New York State. It allows consultants to start work at an urgent project without delay. The standby contract specifies work that may be performed by the consultant without going through the time-consuming process of obtaining a formal contract amendment. When DEC staff are available, they are assigned work normally contracted to consultants.

15. Why does DEC differentiate between hazardous waste and hazardous substances? Why not look at the danger to people?

DEC's Inactive Hazardous Waste Disposal Site Remedial Program is only legally authorized to address a site with hazardous waste as defined in State law. The definition of an inactive hazardous waste disposal site as used in the remedial program was established by the Legislature and can only be changed by an act of the Legislature. The definition of a hazardous waste found in State law requires that the waste have certain characteristics or the waste be produced from a specific industrial process. Residential wastes, which can contain hazardous substances, are exempt from this definition of hazardous waste. Only if hazardous wastes as identified in State law are present, can a site be included in the State Superfund program.

In 1994, legislation was passed which required DEC to conduct a study of hazardous substance sites which fall outside the definition of inactive hazardous waste disposal sites. The Department, in conjunction with the Department of Health, issued a final report on the Hazardous Substance Waste Disposal Site Study in June 1995.

An addendum to the report which updates the information contained in the original report was completed in December 1998. The addendum concludes that between 118 and 161 hazardous substance sites in New York may pose a significant threat to public health or the environment. The estimated State share of the cost to remediate these sites is $252 million to $326 million

On the other hand, EPA is authorized to address hazardous substance sites and has done so in New York State. DEC has requested and received EPA assistance to deal with major hazardous substance sites in New York State, such as Radium Chemical in New York City and Forest Glen in Niagara County. While EPA is authorized to address hazardous substance sites, it will not address sites that score less than 28.5 under its Hazard Ranking System.

16. How much money has DEC obtained through cost recovery? Why hasn't DEC obtained more?

Over the life of the program, DEC with the assistance of the Department of Law has recovered more than $73 million in remedial program costs from responsible parties, excluding Love Canal. This amount includes reimbursements for consent orders and voluntary cleanup agreements, as well as costs recovered through litigation.

Generally, action to recover site remediation costs occurs only after completion of the construction. Many State-funded sites have not yet reached construction completion. The State of New York has been successful in recovering costs related to Love Canal. In June 1994, Occidental Chemical Corporation reached an out-of-court settlement with New York State in which Occidental agreed to pay the State $98 million in damages. Occidental also agreed to conduct future operations and maintenance activities at an estimated cost of $22 million.

Moreover, DEC is required by law to avoid spending Bond Act funds by first pursuing responsible parties to remediate their sites. DEC actively pursues cost avoidance. It attempts to have the responsible party spend the money in the first instance rather than recovering the money from the responsible party after it is spent by the State. As a result of our aggressive enforcement program, most sites with viable responsible parties are remediated with responsible party funding. State funds are used primarily for cases where no viable responsible party exists.

17. Why don't negotiations between the Department and Responsible Parties have a deadline or drop dead date?

The 6 NYCRR Part 375 Inactive Hazardous Waste Disposal Sites regulations limit the amount of time allowable for negotiations to nine months, unless the Department determines that a longer period will promote achieving the negotiation objectives.

18. Why aren't citizens involved in legal negotiations?

Negotiations between DEC and responsible parties often involve issues of company confidentiality which would make public negotiation of consent orders problematic. The consent order is a legal commitment to carry out an approved work plan. The work plan sets out the actions to be taken at the site. Before final approval, the work plan is made public in order to provide the opportunity for citizen input.

19. How are the Department of Health (DOH) and the Department of Law (DOL) involved in the Inactive Hazardous Waste Disposal Site Remedial Program?

DOH conducts health-related site inspections at suspected sites; conducts health assessments to determine potential risk from environmental exposures; reviews Risk Assessments prepared during the RI/FS; conducts health-related community outreach around sites; and reviews remedial actions to assure public health concerns are adequately addressed.

DOL takes the lead on sites requiring civil enforcement through court action. Litigation can involve negotiations and court action with responsible parties to clean up sites; natural resource damage claims, and cost recovery of remedial costs.

20. What does it mean when a site is delisted?

A site is delisted if no consequential quantity of hazardous wastes are present. This can occur when one of two conditions exist:
a consequential quantity of hazardous waste was never present at the site. Upon investigation, it is often found that no hazardous waste was ever disposed of at a site. If other environmental problems exist at the site, DER refers the site to the appropriate agency division for further tracking - Division of Solid and Hazardous Materials, Division of Water; or
an inconsequential amount of hazardous waste, (i. e., an amount of hazardous waste that does not create a significant threat to the environment at present or in the foreseeable future) is all that remains at the site as a result of remediation. The site is deemed to be cleaned up.
21. Why doesn't DEC control activities in the vicinity directly around a site (the perimeter of the site), such as: new construction, property sales?

DEC does not have the type of land use control authority that would be required to regulate land use activities in areas adjacent to a site. This authority is vested with municipalities. A municipality would have to use its zoning powers to control land use directly around a site. When the use of surrounding property is necessary for the proper remediation of a site, the State would have to acquire that property or obtain an easement.

22. Are there any restrictions for what a site can be used for after it is cleaned up?

Future use of a remediated inactive hazardous waste disposal site depends on the remedy implemented. DEC has limited authority to restrict uses of a site after the site is remediated and delisted from the registry. For sites with wastes contained on-site requiring long-term operation and maintenance activities, the responsible party may agree to restrict access during and after remedial construction. However, many of these sites are reused with appropriate deed restrictions in place to prevent any uses which might disturb the remedy or create health hazards. State regulations require that DEC be notified at least 60 days in advance of any proposed substantial change of use of a site listed on the Registry.

23. Is the 1986 Environmental Quality Bond Act sufficient to do the job?

No. Additional funding will be required to implement the program. Reasons for this include the increased scope of the program (originally 500 sites, currently 902 sites and expected to increase), no federal funding made available for municipal sites, and the high cost of remediating a number of very large landfills.

24. What is DEC doing about the need for additional funding?

In the near term, the Department is taking steps to extend the 1986 EQBA funds and maximize the use of these funds for as many projects as possible, without delaying remedial progress at sites. It is vigorously pursuing its cost recovery efforts to reimburse Bond Act funds and enable these funds to be used for other projects. It pursues responsible parties to clean up sites, thereby avoiding the use of 1986 EQBA funds (also called "cost avoidance"). It is promoting voluntary cleanups to increase the number of sites being addressed by the private sector, avoiding the expenditure of Bond Act funds. The Department is also attempting to make sure that the worst sites receive priority attention.

In addition, in June of 1999, New York State proposed comprehensive legislation to ensure the continued effectiveness and financial security of the Inactive Hazardous Waste Disposal Site Remedial Program.

25. What permits are typically required prior to implementing a remedy?

Each site cleanup can be very different in the type of permits that could be involved. Here are some examples:
activities under the jurisdiction of both State and Federal wetland permit programs;
treatment and disposal of contaminated soil, water or air;
construction of new buildings or other structures normally requiring a local building permit.
The regulations for the State's Inactive Hazardous Waste Site Remedial Program provide an exemption from permits normally issuable by the Department or local government. The regulations do not provide exemption from Federal permits. The exemption can only be applied if the activity satisfies all substantive technical requirements that would have to be met if otherwise permitted. The conditions that must be met before a waiver of permits can be granted are set forth in State regulations at 6NYCRR Part 375-1.12.