Rhode Island Department of Environmental Management Wetlands Initiatives
March 1, 2003
The abandonment
and underutilization of contaminated industrial properties strains local
economies, threatens public health and causes far-reaching and sometimes
irreparable environmental damage. Rhode Island’s Brownfields law (the Industrial
Property Remediation and Reuse Act, R.I. Gen. Laws § 23-19.14-1 et seq.)
recognizes this reality and encourages through various incentives the
remediation and reuse of affected sites. Unfortunately, the productive
redevelopment of Brownfields has oftentimes been impeded, rather than
facilitated, by the Rhode Island Department of Environmental Management’s
(RIDEM’s) Site Remediation Program. At present, that program is facing an
alarming backlog of applications such that several hundred contaminated sites
remain unresolved.
Over the last
couple of years, state lawmakers and agencies have attempted to address the
inefficiencies of the Site Remediation Program. One suggestion for improvement
that has been seriously considered is the privatization of site remediation.
Instead of RIDEM, licensed environmental professionals would direct and oversee
the clean up of contaminated sites. Six other states, including neighboring
Massachusetts and Connecticut, have already implemented third-party remediation
programs. In 2002, the Rhode Island General Assembly charged RIDEM, in
conjunction with the Rhode Island Economic Policy Council, to evaluate the costs
and benefits of adopting an approach modeled upon the Massachusetts and
Connecticut programs. RIDEM discharged its mandate by conducting a survey of
interested stakeholders and members of its own staff, the conclusions of which
are found in a written report issued by RIDEM on December 31, 2002.
The 2002 Report
definitively rejects the third-party licensed professional approach as a viable
solution to streamlining the current remediation program. In that report, RIDEM
concludes that the potential benefits of expedited remediation of sites,
predictability in clean up schedules, and increased control for applicants over
the remediation process, were outweighed by the disproportionate costs that
would be required to ramp up and eventually operate a third-party remediation
program. Expenses would include the payment of salaries of experienced staff to
initiate and run the program, the creation of an administrative body to govern
the licensing of environmental professionals, and the formation of a staff to
perform auditing functions and bring enforcement actions. RIDEM estimates that
the program would require $500,000 in transition costs and $200,000 in annual
operating costs.
Although the
report predicts that many of the costs could eventually be offset by licensing
fees and federal funding, RIDEM nonetheless found that a third-party remediation
program would be inappropriate for Rhode Island. Most notably, the proposed
program would deny applicants the finality they can obtain under the current
program such as in the form of a Letter of Compliance or other state issued
document promising no further liability in connection with the sites.
Additionally, RIDEM has found that environmental consultants want formal
validation of their work and citizens desire notice and public hearings on sites
that may have an impact on surrounding communities. Indeed, RIDEM emphasized
that there has developed a general expectation of state involvement in and
oversight by the public over the remediation process. A private self-policing
program would not, in RIDEM’s view, adequately satisfy any of these interests.
Another factor
cited by RIDEM as a reason why a third-party remediation program would not work
in Rhode Island is its inflexibility. As acknowledged by RIDEM, the existing
regulations function more like guidelines and leave substantial leeway for RIDEM
staff to customize remediation projects and respond to site-specific problems.
Stakeholders participating in the survey underlying the report deemed this
aspect of the Site Remediation Program to be one of its more laudable features.
Such an approach would obviously have to change under a third-party program to
ensure accountability of and compliance from environmental professionals. Thus,
RIDEM would be forced to implement a more stringent process and to require
adherence to a very detailed set of requirements. Such action is considered
undesirable by RIDEM, applicants, and consultants.
The 2002 Report
ultimately concluded that the adoption of a third-party remediation program like
those of Massachusetts and Connecticut would constitute a substantial departure
from the way Rhode Island currently does business. While it accepts that change
to the Site Remediation Program is needed, RIDEM believes the addition of more
staff to the program will advance that goal better than a complete overhaul of
what is essentially a sound model for the remediation and redevelopment of
contaminated properties. A copy of the 2002 Report is available on RIDEM’s
website at
www.state.ri.us/dem/programs.
Greg Benik is a partner and Jennifer Cervenka is an associate with
Holland & Knight LLP in
Providence. They may be reached at (401) 751-8500 or via e-mail at
greg.benik@hklaw.com and
jennifer.cervenka@hklaw.com respectively.