Issues in Plain English
The work done so far has been limited to only 3 on-site lagoons and a landfill. No samples have been collected from the mill buildings or other areas of mill operations.
What does this mean to us? It means that no testing has been done for asbestos or lead paint in the buildings. No samples have been collected to test for fuel spills, chemical spills, or leaks from transformers, tanks, equipment pits, sumps or trenches around the mill operations areas. But if there IS contamination in any of those areas, responsibility for finding out how much there is and cleaning it all up will be transferred with the title of the property.
So that's a big unknown - what might there be in the parts that haven't been studied? As for the landfill and lagoons area, here are some of the issues of concern.
Once contamination has been identified, the law requires a comprehensive evaluation of the nature and extent of contamination.
What this means is that the DEP requires (this is not optional) definitive answers to questions like this - how deep does the contamination extend? how far into the wetlands does it extend? how much of it is there altogether? can you prove that the Tail Race & Mill River have not been affected?
These questions have not been answered by the work done so far. So when the State audits the site, the property owner at the time of the audit (not the party responsible for the contamination) will have to pay a consultant to collect and analyze samples at depth, samples from the wetlands, samples from the brook and river. And depending on the results, that same property owner is also going to have to pay for any cleanup that is required at depth, in the wetlands, and in the river.
The law requires that risk to wetlands be fully characterized via a process called a Method 3 risk characterization.
Wetlands areas are under special protection because of their importance in protecting our underground drinking water reservoirs. When a site, like this one, has contaminants in or near wetlands, the law has established a detailed procedure, called a Method 3 risk characterization, that MUST be conducted. Again, this is not optional, but it wasn't done at this site, so an audit will require the property owner, whoever they are at the time of audit, to pay for a Method 3 risk characterization of contamination in and around the lagoon areas. And depending on the results of the Method 3 risk characterization, the audit could also require a potentially expensive cleanup of the wetlands areas of the site.
The law requires that contaminated soil be placed entirely on a base of impermeable material, and that it not be stockpiled in an environmentally sensitive area.
By placing 4,500 cubic yards of contaminated soil without a liner in the immediate vicinity of wetlands, both these requirements have been violated. The law states that "any failure of materials or procedures ... shall be immediately repaired, replaced, or re-secured", which means that the owner at the time of audit will be held responsible for the repair, including possibly re-excavating the entire landfill area and handling the soil in accordance with the law.
The law requires that all sources of contamination be eliminated or controlled.
This one is actually pretty intuitive - if you want to say that there's no further risk at a site, then you have to meet applicable standards. But at this site, the report clearly states that contaminants exceeding the applicable S-1 and S-2 standards have been left in place. As one of the peer reviewers for this work said, this is the first RAO report that they've seen that certifies that there is contamination. Needless to say, that's not going to be passed by an audit.
But what about the deed restriction? Doesn't that allow you to leave contaminants above standards in place? In a word, NO.
The law expressly prohibits the implementation of an AUL (aka deed restriction) in lieu of meeting applicable standards. In fact, the law is very specific in this regard: it states explicitly that a deed restriction cannot be used instead of meeting an applicable standard. Here's another way of understanding the deed restriction issue: There are three sets of standards that apply to soil cleanup. For our purposes, we need to know about just two:
* S-1 applies to soil at residential sites. At the simplest level, soil that meets S-1 standards is safe for little kids to play in and to eat. * S-2 applies to soil at commercial sites. It assumes that some kids might be present, but it's primarily designed to make sure that adults with occasional exposure to the contaminants are safe. As you can imagine, S-1 standards are much more stringent than S-2.
Now what the DEP allows is this -- say you have a mill site that's going to stay commercial. The DEP says that you HAVE to clean up to commercial standards (those are the S-2), and then, if you don't meet the more stringent S-1 standards, you have to put a deed restriction on there so that there are no future residential or agricultural or playground-type uses (i.e. no kids play in the dirt). That way, future owners know that the land was only cleaned up to commercial standards, and there's no risk as long as it's used for commercial purposes.
What CDM has done is backwards - they have a mill site that exceeds commercial standards. They didn't even clean it up to the less restrictive commercial standards, leave alone the residential ones. And then they put a deed restriction on it that allows kids to play on the contaminated dirt! Can you see the DEP saying - oh yes, that's fine - it's not good enough for a mill site, but it's perfectly OK for a park?