On
July 22, the United States Environmental Protection Agency listed the
plant site of the former Diaz Chemical Corporation in Holley, New York
on the National Priorities List (“NPL”) under the federal “Superfund”
program. The listing of a site on the NPL is an
unusual event in western New York and invites a look at the process to
see how this occurred and what it means. A brief
comparison with other kinds of lists kept by the New York State
Department of Environmental Conservation highlights some differences
and similarities among the lists. The Diaz Chemical Site is located in the Village of Holley, Orleans County. According
to EPA, the property was used for the past 30 years for the formulation
of intermediate organic chemicals used in pharmaceuticals, agriculture,
photo processing and other industries. EPA’s
involvement was triggered by a widely-reported release of chemicals
from the rupture of a safety valve on a reactor vessel. Approximately
75 gallons of chemical mixture was released to the air, creating a
“splash zone” in the neighboring residential community. EPA also reports that Diaz had a prior history of spills stretching back to 1977. Diaz
had been investigating the earlier spills under the supervision of DEC
when the reactor vessel valve breached in January 2002.
The
NPL is a list maintained by EPA to determine a national priority for
investigation of sites where hazardous substances satisfying specific
criteria have been released to the environment. Most
sites are added on the basis of a Hazard Ranking System (HRS) which EPA
uses to evaluate the relative potential for uncontrolled hazardous
substances to pose a threat to human health or the environment. The
HRS system is problematic because EPA assigns numerical scores to
subjective criteria giving the method a more “scientific” appearance
than its actual substance warrants. Nevertheless, as a matter of EPA policy, those sites that score 28.50 or higher are eligible for listing on the NPL.
Listing on the NPL does not assign liability to any party, nor does it mean that any remedial action need be taken. However, listing opens the door for EPA to spend federal Superfund dollars.
Out of the total universe of contaminated sites, sites on the NPL comprise a small, but particularly stigmatized class. Nationwide, a total of only 1,244 sites are listed on the NPL, and there are no other NPL sites in Monroe County. Listing on the NPL gives a property a singular, unwanted distinction and makes it virtually unmarketable.
To
give the distinctiveness of the NPL listing some context, the DEC also
maintains a comparable state list of inactive hazardous waste disposal
sites, another list of contaminated sites which are in the voluntary
cleanup or Brownfields program, and yet another list of sites where
spills of petroleum or other substances have been reported. These
lists are available to be searched on the DEC website and are the
subject of an annual “Remedial Programs Annual Report” published by DEC. As
a contrast to the relative rarity of a listing on the NPL, there are at
least 1,765 sites on the New York State registry and more than 400
sites in the Brownfields programs. In addition, more than 15,000 spills or suspected releases are reported to DEC annually. In the past 12 months, 526 spills were reported in Monroe County alone.
A site on the NPL will, in all likelihood, also appear on a DEC list, but EPA generally takes the lead role at NPL sites. Thus
NPL sites are distinguished by federal management by the EPA, as well
as by eligibility for federal dollars to pay for the investigation and
cleanup. NPL sites are also directly subject to
EPA standards and guidelines for investigations and cleanups which do
not apply to the multitude of sites on the state-only lists.
Listing
on the NPL is not conclusive evidence that a site is more of a problem
than sites on the DEC lists; it only signifies that the site’s HRS
score exceeded 28.50. This relatively abstract
criteria carries significant consequences, however, because it unlocks
the door to federal management and funding. The Diaz Chemical site has gained entry into this exclusive club. Only
time will tell whether management from EPA Region 2 in New York City
will produce benefits for the residents, the village and the site.
Reprinted with the permission of The Daily Record, @2004