Many a company or developer has discovered throughout the years that seemingly developable property was anything but - thanks to the presence of ground contaminants from previous uses. And while it is certainly possible (if not cheap) to clean and build on such sites, developers and companies often find the biggest hurdle to doing so is the availability of state officials to monitor the process and ultimately give approval to the final result.
Often facing a ratio as serious as 100 sites for every available member of the regulatory staff, states have struggled to unbury themselves so as to facilitate the process of unburying the contaminants that keep old sites vacant and developers waiting interminably - or looking elsewhere to do their projects.
Bay State Leads the Way
To lessen the backlog and get projects moving toward implementation, many states are now adopting variations of a system implemented by Massachusetts in 1993. The Bay State sought to solve the problem by certifying private-sector companies and individuals - typically engineers with some background in ground contamination and site remediation - to become project managers on individual site remediation efforts. While not acting in an official state capacity, and still requiring state approval on the final result of any remediation, the certified project managers have the freedom to guide developers through the process and oversee the steps that lead to a clean, developable site.
"All of these voluntary or streamlined programs have allowed the developer to interact with an entity on a real-time basis to help them walk through the process," said Pixie Newman, Northeast lead for site remediation and redevelopment for the consulting firm CH2M Hill. "I see that as a significant change, because in effect, depending on how they interact with that licensed professional, the developer has the opportunity to have a partner who can understand, navigate, and get to the end goal."
Other States Follow
Other states began following Massachusetts' lead in recent years as they too faced serious backlogs. One of the first to do so was Connecticut, which in 1995 established a process by which licensed environmental professionals can oversee a site cleanup if commissioned by the state. Perhaps the most ambitious example occurred in New Jersey, where the Site Remediation Reform Act took effect May 7 to begin the certification process that will ultimately put private-sector professionals at the forefront of the process.
"In the past, you would have to wait until the department head had the time and resources to review every submittal you sent in, and OK it," said Irene Krupp, assistant commissioner for site remediation at the New Jersey Department of Environmental Protection (DEP). "There was always a lot of back and forth between the department managers and the environmental consultants. We tended to do their work for them."
Krupp said disagreements often arose between staff and consultants about what needed to be done and who would pay for it. As a result, would-be developers who had endured long waits to even get a review would have to wait even longer while regulators and consultants tussled over minute details. The new statute changes that by putting those same consultants in a role that could almost be described as that of an outsourced regulator.
"Now, licensed site remediation professionals can move forward under a very strict code of conduct," Krupp said. "They don't have to be the advocate for their client. They don't want to be the advocate for their client. And in exchange, they don't have to wait for DEP approval, and we get to focus more of our resources on the cases that are most important to us from an environmental perspective."
The first site remediation professionals are expected to be licensed in November.
Remediation activity picked up steam in many states in 2002, after President George W. Bush signed legislation increasing federal assistance for site remediation projects. The so-called Brownfields Law also included grants for assessment, cleanup, and related job training.
The Brownfields Law also amended the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to authorize a CERCLA grant program establishing and enhancing state and tribal response programs. In the years since, state action to reform and streamline the remediation process has accelerated.
In North Carolina, the state moved in 2007 to initiate the Registered Environmental Consultant (REC) Program, through which a developer or "responsible party" can petition the state for approval to initiate cleanup of a site. The state signs off on the hiring of a REC and cleanup begins.
Although the certified REC essentially takes the place of state oversight, the state audits a portion of REC projects to ensure that basic state guidelines are being met. If the REC leads a successful cleanup of the site, the state awards the site a "No Further Action" status, and development of the site can begin.
In Ohio, the process is known as the Ohio Voluntary Action Program (VAP). Certified professionals, land owners, and/or developers in Ohio are first required to perform a site environmental assessment to determine which contaminants may be present on the property and how cleanup would be achieved. VAP allows certified professionals to prepare a plan to clean up the piece of property through remedial actions, along with a cost estimate. If approved, the plan can be eligible for state funding through the Clean Ohio Assistance Fund or the Clean Ohio Revitalization Fund.
Legalizing the Private Sector Project Manager
According to Newman, states have followed the lead of Massachusetts by legalizing the concept of the private-sector remediation project manager, but have left it up to the developer to get that party on board. The licensed professional then has to oversee the project in the same way the state regulator would.
"It's that individual's responsibility to make sure the program is implemented appropriately, according to the regulations," Newman said. "In most of these programs, it's not a complete substitute for the state approval. In almost all cases it's to streamline the process."
The simplification of the process, along with clearer guidelines, has spurred more developers to consider sites that need remediation, Newman added. "Fewer developers were interested in doing this 10 years ago. With codification of the cleanup program requirements, it has become more apparent what is necessary. This is not always black and white, even if you are engaged in one of these licensed programs and an LSP (Licensed Site Professional) is engaged; but the entire process has the potential to be more understandable," Newman