Vantage Point: Noticing a Dirty Past

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Accutherm, Inc. manufactured thermometers containing mercury in Franklinville, New Jersey until 1994. It notified the state’s Department of Environmental Protection (NJDEP) of its ceased operations, NJDEP issued cleanup orders to Accutherm, and when Accutherm didn’t comply, the site was referred to the federal Environmental Protection Agency (EPA) for an assessment. The EPA’s 1996 report indicated the site did not pose an immediate threat to human health (which is not to say long term threats did not exist).

In 2004, a day care facility (Kiddie Kollege) opened in the building. However, when NJDEP reported that the site was not fit for occupancy after finding elevated mercury levels from indoor air (27 times the acceptable standards) and from surface wipe samples, Kiddie College closed voluntarily in 2006. Follow-up testing of children and staff revealed elevated mercury levels in many, warranting long-term monitoring of their health.

The 2010 trial over whether or not Kiddie Kollege should have been allowed to open in Accutherm’s former site raised questions of "who knew what, and when" about the existence and extent of the mercury contamination, with fingers pointed in many directions. Township officials pointed to NJDEP as the responsible entity. Owners of the site pointed to the township for issuing a permit for Kiddie Kollege despite having received a 1990 letter from the US Labor Department about Accutherm’s employees’ exposure to mercury at levels above the Occupational Safety and Health Administration’s standards. NJDEP pointed back to its published list of contaminated sites as public notice. Division of Youth and Family Services, which licenses day care centers, stated that it was not required to check that list, and only ensures that facilities are free of lead, asbestos and radon gas, not mercury.

In the end, the state took down the contaminated building, just one of about 20,000 identified polluted sites ranging from leaking underground storage tanks to former industrial sites like this one. A new law (2007) addresses enforcement of cleanup mandates, but does not improve public awareness through a more readily accessible means of providing notice: through deeded land use restrictions. Before that discussion, here’s a little history of how such a situation could occur.

The expanding definition of "sustainability" now encompasses rehabilitation of historic structures and reuse of industrial brownfields. By "brownfields" we mean areas that have been contaminated by industrial waste and then abandoned by the former tenants or owners. As the former hearts of many cities and towns, industrial buildings often still hold a glimmer of architectural grandeur, inviting reuse.

Properties that are severely contaminated with specific identifiable substances found on site in massive quantities are categorized as Superfund sites, eligible for federal EPA oversight to assure appropriate cleanup and future maintenance of safe use of the site. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 has three Superfund objectives: establish prohibitions and requirements concerning closed and abandoned hazardous waste sites; provide for liability of those responsible for releases of hazardous waste at these sites; and establish a trust fund to provide for cleanup when no responsible party can be identified.

While National Priority Lists of Superfund sites are readily accessible on EPA’s website, this does not necessarily provide notice to a prospective purchaser of a cleaned up and seemingly presentable former waste site. The incentive to reuse a brownfields site to revive local economy is often in tax abatement programs and grants for building retrofit and revitalization. A stone and brick masterpiece turned into an office site or local performance center is a definite advantage to the neighborhood.

What happens with the evolution of a successful structure may be beyond the scope of the original site cleanup. For a site with dormant contaminants, presently inert beneath layers of compacted soil, the answer may be a newly released and unexpected health hazard. Reusing a brownfields site industrially requires no new excavation if the building is not expanded or retrofitted with new pilings. Arsenic and toluene stay in place, undisturbed and unexposed.

Years later, the area is pulsing with activity, and housing is the next big need. The elegant floor to ceiling windows and the high ceilings inspire architectural transformation to apartments or condominiums. As our Cinderella building receives sweeping new porticos, or even just a playground and swimming pool for the new occupants, a lot of dirt disturbance occurs. At this point in planning there is a fork in the information highway.

On one side we have the Superfund sites. For these we have a ready avenue for public notice in the form of a deed restriction. As a condition for funding site cleanup, EPA requires clauses that prohibit excavation beyond a certain depth or even any excavation in certain areas of the site. The cap sealing the contaminants from exposure are made known and therefore are protected.

But what about sites on which we know there has been industrial waste–from past history or stained soils and lack of any vegetation–but not to the extent of qualifying as Superfund site? We have few means of discovering the situation except by proactive searching of admittedly public but not so easily found records. And not many voluntarily search for bad news.

Perhaps we follow the example of the Uniform Environmental Covenants Act (UECA), a national model act meant to address state-mandated engineered remediation to attain or maintain prevention of pollution migration. Contaminated properties subjected to long term land use control or imposed activity/use limitations can be subjected to regulators requiring recordation of such restrictions in property deeds before clearing sites for reuse.

UECA requires environmental covenants for not only the source property, but also adjacent non-source properties where the engineering control exists. These covenants restrict uses of the property and provide for post remediation care of the ongoing engineering control of the pollutant(s). They can prohibit future use of groundwater and require continued monitoring to enforce the prohibition. A state may have other acts for hazardous site cleanup and solid waste management requiring deed acknowledgments that do not limit use of the property but still provide notice and warning.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 113Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE