July 10, 2013: The Senate version of House Bill 94 (Amend Environmental Laws) makes so many changes to environmental statutes, that I just focused on language in Section 16 that requires Council of State approval before any state agency (including the UNC campuses and community colleges) can buy property with known contamination. (Note: The Council of State consists of the Governor and other individually elected heads of state agencies such as the Attorney General, Commissioner of Labor, Commissioner of Agriculture and State Treasurer.) Approval would be given only if the agency has a plan to use funds other than state General Fund appropriations for the purchase. See Edition 4 of House Bill 94 for the Senate version of the bill.
The bill has already passed both chambers and is now in conference to resolve differences between the House and Senate versions. The language on purchase of contaminated sites was not in the House version of the bill, but I do not know whether this is an area of controversy between House and Senate conferees.
On its face, the restriction appears to be common sense — why should state funds be used to buy contaminated property that may be expensive to clean up? In practice, completely avoiding property with contaminated groundwater may be more difficult than legislators realize. It also bumps right into the General Assembly’s repeated endorsement of limited, “risk-based” cleanup of groundwater contamination because of the lower remediation cost.
Some background —
Tens of thousands of properties across the state (urban and rural) have groundwater contamination. Most of the contamination came from past industrial and commercial uses, such as leaking underground petroleum storage tanks at gas stations, solvent contamination from dry-cleaning operations, old dump sites, and miscellaneous chemical spill or disposal sites. Some resulted from agricultural pesticide use. Recent reports from the Department of Environmental and Natural Resources provide some numbers:
372 dry-cleaning sites with known solvent contamination
3,071 chemical spill, chemical disposal and unlined waste dump sites
26,625 reported petroleum releases (17,816 from commercial underground storage tanks and 8,809 from noncommercial tanks, such as home heating oil or farm tanks)
These kinds of problems are so common that it will be difficult for state facilities and university campuses to expand without bumping into some kind of contamination. Groundwater monitoring wells have been installed near several buildings in the state government complex in downtown Raleigh — including the legislative building — because of groundwater contamination that most likely came from a dry cleaner that once operated near the current site of the Nature Research Center. The numbers provided in DENR’s reports to the General Assembly only represent the sites that state regulators already know about. New reports of contamination come in with some frequency as property is developed or redeveloped.
Many of the state’s remediation programs do not require complete cleanup of groundwater contamination, allowing some level of contamination to remain as long as it does not affect drinking water supplies or create some other health or environmental hazard. By law, both the underground storage tank and dry-cleaning solvent cleanup programs use a “risk-based” cleanup approach that often allows some level of groundwater contamination to remain after remediation is completed. Cleanup reduces the groundwater contamination enough to eliminate any immediate hazard. Risk to drinking water supplies can sometimes be eliminated by abandoning drinking water wells and connecting to a local water system. But in the end, the groundwater will continue to have some level of contamination for many years.
The General Assembly has recently expanded the kind of contaminated sites eligible for “risk-based” cleanup to also include industrial sites. Although few companies have taken advantage of the opportunity to do a risk-based cleanup yet, adding industrial sites to those eligible for “risk-based” cleanup will likely increase the number of contaminated sites where remediation will not completely eliminate groundwater contamination. (Ironically, the definition of “contamination” used in the bill comes out of the risk-based remediation law for industrial sites.)
Through the Brownfields Redevelopment Program, state law actually encourages redevelopment of contaminated sites and can allow the new owner/developer to avoid some cleanup costs. If the person who caused the contamination has the financial ability to do a clean up, that person continues to be responsible for most remediation. Even if the original polluter does not have the financial ability to cleanup the contamination (or cannot be found), the brownfields redevelopment laws provide liability protection to the new owner and allow a “risk-based” cleanup of any contamination. A number of local governments and developers have used the brownfields program to make idle, blighted industrial sites productive again.
Without modification, the Senate language may be too restrictive to allow for necessary expansion of state facilities and community college/university campuses. It also causes the General Assembly to bump into its own policies on cleanup of environmental contamination. On the one hand, the General Assembly has consistently moved to increase use of risk-based cleanups that allow some level of groundwater contamination to remain for many years after remediation is done. On the other hand, the proposed Senate language tries to avoid state purchase of property with any contamination at all. Those two policies may not be reconcilable.