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Getting Started
When planning a site restoration you need to consider your legal relationship to the site. You may own the property, you may have run a business on the site, you may have made an offer and entered a purchase and sales agreement to buy the site, or you may only be considering the site for purchase. You may also be a concerned citizen or municipal official interested in neighborhood revitalization.
Different legal relationships
have different legal obligations and different potential
financial assistance
possibilities. It is, therefore, critical to understand your role when starting the process. If you did not cause the problem but would like to help in cleaning up the site, the Department of Environmental Management (DEM) or the Economic Development Corporation (EDC) may be able to help you avoid potential liability and/or assist in the investigation. [See:
Contacts and
Financial assistance] If there is a chance that you are legally responsible for the cleanup you may want to get professional legal advice early on. [See:
Understanding your liability
and
Hiring an Environmental Lawyer.]
Different terms and processes regarding site investigation and clean up may apply to a site depending on the type of contamination and the level of risk associated with the site. Several of the most common processes which may apply are described here.
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DEM Brownfields Process / Voluntary Cleanup Program (VCP): The clean up of contaminated sites is part of the DEM Brownfields process - the focus of the technical information is supplied here. The major steps for the performing party in this process as defined in the regulations are: Notification of Release, Site Investigation Work Plan (SIWP), Site Investigation Report (SIR), Remedial Action Work Plan (RAWP), Remedial Action, Closure Report, and an Environmental Land Use Restriction (ELUR) and / or a Settlement Agreement and Covenant not to Sue (SACNTS) if applicable. These steps will be explained in greater detail below. At times, these steps may overlap, other times distinct processes are noted.
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Lending Institutions Brownfields process: Restoring a site often requires borrowing money. Lending institutions require borrowers to assess the extent of environmental contamination. The terms used by lending institutions are "Phase One" and "Phase Two" "Environmental Site Assessments " and generally follow the American Society for Testing Materials standards for the investigations. Generally, the information gathered for a Phase I/II Environmental Site Assessment may be incorporated to address the requirements of an SIR.
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CERCLA process: The federal law that regulates the clean up of contaminated sites, the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), requires that the EPA maintain information on sites that are known to be contaminated or thought to potentially be contaminated (the CERCLIS for CERCLA Information System or
CERCLIS list). If a site is on this list, and there are approximately 150 that are in Rhode Island, then the federal terms and processes may be applied. The first part of a CERCLA process is a "Preliminary Assessment", followed by a "Site Investigation" and, if warranted, a "Expanded Site Inspection". Alternatively, for sites on the list but are not designated as Superfund sites (see below), a project sponsor may elect to follow the RIDEM Voluntary Cleanup Program. EPA has agreed that if DEM issues a letter of compliance that the site will be removed from the active concern list and put on an
"archived" list.
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Superfund process: The sites on CERCLIS that have been investigated and found to have significant contamination problems are known as Superfund sites and are listed on
EPA's National Priority (NPL) or Superfund list. There are
12 sites in Rhode Island
currently listed as Superfund sites. The process for the clean up of these sites is overseen by EPA and is not considered part of the state Brownfields process. (See:
EPA's Superfund site.)
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Underground Tank process: If site contamination is due to discharges from underground storage tanks (UST), then the cleanup process is dictated by the rules and regulations for those tanks, not by the brownfields process. This is a distinct process, which begins with a "Site Investigation Report" as defined by the RIDEM UST Regulations.
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Lead Paint and Asbestos processes: These two contaminants are particularly common in older buildings and are considered, from a regulatory point-of-view, to present more of a public health than an environmental risk. The processes concerning removal of these substances from the interior of a building is therefore regulated by the Department of Health. Importantly, buildings contaminated only with lead paint or asbestos are also not eligible for many of the financial assistance programs aimed at Brownfield restoration.
DEM Brownfields Process / Voluntary Cleanup Program
Cleaning a contaminated site requires investigation, plans, agreements and action. The remediation regulations define these specific documents that are needed, or may be needed, as part of that process:
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Notification of Release
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Site Investigation Work Plan (SIWP);
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Site Investigation Report (SIR);
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Public Notice
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Remedial Action Work Plan (RAWP);
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Remedial Action;
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Closure Report;
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and if applicable
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Environmental Land Use Restriction (ELUR);and
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Settlement Agreement and Covenant not to Sue.
Depending on the site conditions and the amount or type of contamination other regulations may also be applicable. In addition, the following two guidance documents developed by DEM may be helpful in selecting professional services as you proceed through the process:
The process described below is intended to be typical for a Brownfield site:
Environmental contamination is often not obvious. Determining if a former industrial or commercial site is contaminated, and to what extent, requires a professional site investigation. [See: Site Investigation Brochure and
Hiring an Environmental Consultant]
Banks and lending institutions often require a Phase I/II Site Assessment before they will finance a property purchase, building expansion, or improvements. Companies may also need to investigate environmental issues as part of an internal business process audit.
The goal of a site investigation, sometimes known as an assessment is to determine the extent of contamination on a site and the impact on human health and the environment. Although not required by DEM a Site Investigation Work Plan can be used to outline, in advance, the details for types and number of test proposed and how the investigation will be performed. The benefits of submitting a Site Investigation Work Plan include advanced comments and guidance that may streamline the investigation approval.
Often financial institutions may require investigation reports know as Phase I and Phase II Environmental Site Assessments (see descriptions below). The submission of a Site Investigation to DEM generally encompasses the equivalent of these assessments, along with three proposed remedial alternatives to clean up the site. A Site Investigation Report must meet the requirements of Section 7.08 of the Remediation Regulations.
This report examines the site's use history, the likelihood of contamination and potential areas of concern. Property records and anecdotes about the usage of the site are gathered from records, municipal officials and people familiar with the property and businesses that occupied the land.
This report is based on information previously collected and may involve sampling and testing the air, water, soil and buildings for various hazardous substances. The goal of this site investigation is to reveal evidence of historical spills and leaks of hazardous waste or petroleum and to determine the source, nature and extent of contamination. The regulations detail how to
prepare a report
to DEM if contamination is found. This report outlines all of the test data, all contamination found. Note that the regulations require
notification
of abutting property owners and tenants before field investigation work is started.
If concentrations of hazardous substances in air,
soil, sediment, or
groundwater
are in excess of any of the objectives and / or criteria as defined in the regulations, commonly as a result of a site investigation,
DEM must be informed within fifteen days of discovery.
(see
Hazardous Material Release Notification Form) In cases where the release causes an emergency, or imminent hazard,
DEM should be notified immediately with a written follow-up within forty-eight hours.
After DEM receives a notification of release, the Site Remediation Program sends a
Letter of Responsibility
to the Responsible Party or a Voluntary Procedure Letter to the
Voluntary Performing Party. The letter outlines the steps necessary to further investigate or cleanup the site. If no action is necessary, the Responsible Parties will receive a
Non Jurisdictional Letter. DEM will neither issue an enforcement action nor record any documents against the property title as long as progress toward cleanup in a co-operative manner.
Prior to acquisition of a contaminated property, or at any subsequent stage in the process, DEM and the RI Economic Development Corporation staff are available to discuss technical and financial resources that may be available to assist in the investigation, cleanup and/or redevelopment of the site. A conference will help answer questions that you may have related to the investigation or materials on this site. To set up a meeting call DEM's
Office of Customer and Technical Assistance
or the
Office of Waste Management.
Once the site investigation is complete it will be necessary to determine the cleanup technique and how much remediation is necessary to provide for the safe use of the property.
Once the Site Investigation Report (SIR) is complete, DEM will conceptually agree with one of the three proposed cleanup alternatives. The Performing Party (e.g. the developer and/or owner) will be notified by a "Program Letter" which indicates that the SIR is complete and that
notification
to all abutting property owners, tenants and impacted water suppliers of the findings of the investigation and proposed remedial alternative is required.
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last updated: 5/10/05
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